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CONFLICT  OF  LAWS; 

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PRIVATE    INTERNATIONAL    LAW. 


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CONFLICT  OF  LAWS; 


OB, 


PRIVATE  INTERNATIONAL  LAW. 


BY 

RALEIGH  C.  MINOR,  M.A.,  B.L., 

PROFESSOR    OF    LAW    IN    THE    UNIVERSITY    OF    VIRGINIA. 


BOSTON 

LITTLE,  BROWN,  AND  COMPANY 

1901 


Copyright,  1901, 
Bt  Raleigh  C.  Minor. 

AU  right*  re*erv«i. 

T 
l9o| 


TO 

OF 

MY    FATHER, 

WHOSE   PURITY   AND   SIMPLICITY   OP   HEART,    PROFOUND   KNOWLEDGE 

OF   MANKIND,    AND   ENTHUSIASM    IN   THE    SEARCH    FOB 

TRUTH    WILL    EVER   BE     MY    INSPIRATION, 

THIS  BOOK  IS  REVERENTLY  DEDICATED. 


709188 


PREFACE. 


The  arrangement,  as  well  as  the  theory,  of  this  book  departs 
materially  from  that  of  its  predecessors,  the  offspring  of  the 
great  intellects  and  profound  learning  of  Story,  Dicey,  and 
Wharton.  I  should  feel  that  some  explanation  of  this  is  neces- 
sary, save  for  my  belief  that  the  reader  will  find  the  arrange- 
ment its  own  best  defender. 

If  from  the  tangled  skein  of  decisions  upon  this  subject  it 
can  be  said  that  a  single  certain  conclusion  may  be  drawn,  after 
a  careful  and  laborious  analysis  of  the  cases  I  should  select  as 
that  conclusion  the  fact  that  the  great  foundation  and  basic 
principle  of  private  international  law  is  Situs.  Find  the  situs 
of  the  particular  act,  circumstance,  or  subject  under  inquiry  and 
you  will  know  the  law  which  should  properly  regulate  its  validity 
and  effect.  This  proposition,  it  is  true,  is  subject  to  exceptions, 
but  the  exceptions  are  quite  clearly  defined,  and  may  in  general 
be  applied  without  great  difficulty.  They  will  be  found  discussed 
in  the  second  chapter. 

It  is  logical  therefore  to  treat  the  subject  under  the  heads 
which  follow,  each  head  constituting  a  separate  division  or  part 
of  the  work:  Part  I.,  Introductory.  Part  II.,  Situs  of  the 
Person.  Part  III.,  Situs  of  Status.  Part  IV.,  Situs  of  Per- 
sonal Property.  Part  V.,  Situs  of  Contracts.  Part  VI., 
Situs  of  Torts  and  Crimes.  Part  VII.,  Situs  of  Remedies. 
Part  VIII.     Pleading  and  Proof  of  Foreign  Laws. 


Vlil  PREFACE, 

All  the  principles  of  private  international  law  (it  might  more 
properly  be  called  The  Law  of  Situs)  will  be  found  to  group 
themselves  under  one  or  the  other  of  these  heads. 

The  branch  of  the  law  herein  discussed,  though  of  daily 
growing  importance,  is  at  present  in  a  most  chaotic  condition. 
Comparatively  few  points  may  be  regarded  as  settled.  The 
courts  too  frequently  fail  to  rest  their  decisions  upon  sound 
foundations  of  reason  and  principle ;  they  are  too  often 
inclined  to  indulge  in  vague  generalities  and  dicta,  without 
analyzing  the  transaction  before  them  into  its  elements,  and 
applying  the  law  of  the  situs  of  each  element  to  determine  its 
effect. 

It  has  been  my  constant  aim  to  reduce  every  proposition  to 
its  ultimate  principles,  for  only  by  this  means  can  order  be 
brought  out  of  the  confusion  that  now  exists.  In  some  in- 
stances I  have  been  forced  to  cite  decisions  which,  while  sup- 
porting the  conclusions  to  which  they  are  cited,  have  reached 
those  conclusions  by  fallacious  courses  of  reasoning. 

If  the  principles  enunciated  in  this  work  shall  aid  in  illumi- 
nating even  a  few  of  the  many  dark  places  to  be  found  along 
the  path,  I  shall  be  more  than  gratified. 

R.  C.  M. 

University  of  Virginia, 
January,  1901. 


TABLE    OF    CONTENTS. 


PART   I. 

INTRODUCTORY. 
CHAPTER    I. 

PAOI 

Introduction 1 

§  1.  Origin  of  Private  International  Law 1 

2.  Public  and  Private  International  Law  distinguished     .     .  2 

3.  Foreign  Element  essential  to  Operation  of  Private  Inter- 

national Law 4 

4.  Basis  of  Private  International  Law <,     .  5 


CHAPTER    11. 

Exceptions  to  the  Application  of  a  Foreign  Law      .    .      8 
§  5.  General  Grounds  upon  which  the  Exceptions  are  based     .       8 

6.  First  Exception  —  Policy  or  Interests  of  Forum  contra- 

vened by  Enforcement  of  Proper  Law 10 

7.  Second  Exception  —  Injustice  or  Detriment  to  People  of 

the  Forum 12 

8.  Extent  of  Second  Exception 14 

9.  Third  Exception  —  Proper  Foreign   Law  Contra  Bonos 

Mores 17 

10.  Fourth   Exception  —  Pi'oper  Foreign   Law  Penal  in  its 

Nature 21 

11.  Fifth  Exception  —  Transactions  relating  to   Immovable 

Property 28 

12.  Same  —  Application  of  Lex  Situs  to  Transfers  of  Land, 

and  Liens  thereon 32 

13.  Meaning  of  "Immovable  Property"  in  Private  Interna- 

tional Law 38 


TABLE   OF   CONTENTS. 


§  14.  Application  of  Lex  Situs  to  Transactions  relating  to 

Movable  Property 41 

15.  Effect  of  Transactions  completed  and  perfected  under 

Proper    Law  not    generally    altered    by  Subsequent 
Change  of  Situs 43 

16.  Value  of  Precedents  in  Private  International  Law      .     .     48 


PART    II. 

SITUS  OF  THE  PERSON. 

CHAPTER   IIL 

Actual  Situs  of  the  Person 51 

§  17.  Importance  of  Situs  in  Private  International  Law  ...     51 
18.  Actual  Situs  of  the  Person ....    54 


CHAPTER    IV. 

Leoal  Situs  of  the  Person,  or  the  Domicil 58 

§  19.  Domicil,  National,  Quasi-National,  or  Municipal ...  58 

20.  Domicil  distinguished  from  Mere  Residence     ....  59 

21.  Domicil  distinguished  from  Nationality  or  Citizenship  .  60 

22.  The  Legal  Situs  or  Domicil  of  the  Person 61 

23.  Definition  of  Domicil  of  Natural  Persons G2 

24.  Area  of  Domicil 63 

25.  Domicil,  the  Actual  Permanent  Home 64 

26.  Domicil,  the  Constructive  Permanent  Home    ....  05 

27.  Certain  General  Principles  touching  Domicil  —  I.  No 

Person  without  a  Domicil 67 

28.  11.  Only  One  Domicil  at  a  Time 68 

29.  ni.  Domicil  retained  until  another  is  acquired    ...  70 

30.  IV.  Persons  Sui  Juris  may  change  Domicil  at  Pleasure  72 

31.  Several  Kinds  of  Domicil  —  I.  Domicil  of  Origin     .     .  73 

32.  Original  Domicil  of  Child  born  Legitimate 74 

33.  Original  Domicil  of  a  Bastard  —  Of  Legitimated  Child  75 

34.  Original   Domicil  of   a  Foundling  —  Of    an   Adopted 

Child 77 


TABLE   OF   CONTENTS.  M 

VAoa 

86.  n.  Constructive  Domicil  arising  by  Operation  of  Law  78 

36.  Constructive  Domicil  of  Infant  —  Legitimate  Child       .  79 

37.  Domicil  of  Legitimate  Child  —  Father  Alive   ....  80 

38.  Same  —  Father  Dead,  Mother  Surviving 82 

39.  Effect  of  Remarriage  of  the  Mother 84 

40.  Constructive  Domicil  of  Orphan    .          85 

41.  Power  of  Guardian  to  alter  Ward's  Domicil     ....  87 

42.  Constructive  Domicil  of  an  Illegitimate  Child      ...  91 

43.  Constructive  Domicil  of  Child  subsequently  Legitimated  92 

44.  Constructive  Domicil  of  an  Adopted  Child      ....  92 

45.  Domicil  of  a  Married  Infant 93 

46.  Constructive  Domicil  of  Married  Woman 94 

47.  Domicil  of  a  Deserted  Wife 96 

48.  Domicil  of  Wife  who  Deserts  her  Husband      ....  98 

49.  Domicil  of  Wife  whose  Husband  is  Insane  or  otherwise 

incapacitated 100 

50.  Domicil  of  Wife  contemplating  Divorce 101 

51.  Domicil  of  Wife  whose  Husband  applies  for  Divorce     .  102 

52.  Domicil  of  Divorced  Wife 103 

53.  Domicil  of  Wife,  where  the  Marriage  is  Voidable  or 

Void 105 

54.  Constructive  Domicil  of  Idiots 105 

55.  Constructive  Domicil  of  Lunatics 106 

56.  III.  Domicil  of  Choice  —  Three  Essential  Elements      .  109 

57.  Party  must  be  free  to  choose  Domicil 110 

58.  Same  —  Invalids  compelled  to  Reside  Abroad      .     .     .  112 

59.  Further  Elements  of  Domicil  of  Choice  —  Actual  Pres- 

ence and  Animus  Manendi 114 

60.  Actual  Presence 115 

61.  The  Animus  Manendi 117 

62.  Commencement  of  the  Intention .  118 

63.  Duration  of  the  Intention 120 

64.  Evidence  of  Animus  Manendi 121 

65.  Effect  of  Abandonment  of  Domicil  —  Conflicting  Views  124 

66.  Same  —  A  Solution  suggested 126 

67.  Situs  (or  Domicil)  of  Corporation 129 


XU  TABLE  OF   CONTENTS. 

PA  JIT    III. 

SITUS    OF    STATUS. 

rAM 
§  68.  Preliminary  —  Situs  of   Status  follows    Situs   of    the 

Person .  131 

CHAPTER    V. 

Status  of  Personal  Capacity 134 

§  69.  Capacity  in  General  —  Several  Sorts  of  Capacity       .     .  134 

70.  Testamentary  Capacity 136 

71.  Business  Capacity  in  General 141 

72.  Voluntary  Transactions  —  Capacity  to  Contract  .     .     .  144 

73.  Same  —  Capacity  to  Marry 149 

74.  Particular  Incapacities  to    Marry  —  Guilty    Party    to 

Divorce  prohibited  to  Marry  again 155 

75.  Same  —  Polygamous  and  Incestuous  Marriages    .     .     .  160 

CHAPTER    VI. 

tJTATus  OF  Marriage 163 

§  76.  Dual  Nature  of  Marriage 163 

77.  The  Contract  of  Marriage  —  Formal  Validity ....  165 

78.  Substantial  Validity  of  Marriage  Contract 169 

79.  The  Marriage  Status  or  Matrimonial  Union  —  Its  Com- 

mencement and  Continuance 172 

80.  Incidents  of  the  Marriage  Status  —  Marital  Rights  in 

Consort's  Property  —  Lands 173 

81.  Marital  Rights  in  Personalty  of  Consort — In  Absence 

of  Express  Contract 175 

82.  Same  —  Express  Contract  touching  Marital  Rights  .     .  179 

83.  Rights  and  Duties  of  Parents  towards  Children    .     .     .  180 

CHAPTER    VII. 

Dissolution  of  Marriage  Status  by  Divorce     ....  182 

§  84.  Causes  for  Divorce 182 

85.  Proceedings  in  Personam  and  in  Rem  distinguished      .  184 


TABLE   OF   CONTENTS.  Xlii 

PAai 

§  86.  Exterritorial  Effect  of  Foreign  Judgments  and  Decrees  186 

87.  Divorce  Causes,  Proceedings  Quasi  in  Rem      ....  190 

88.  The  Res  in  Divorce  Causes 191 

89.  Exterritorial  Effect  of  Divorce  —  Both  Parties  Domiciled 

in  State  of  Divorce 195 

90.  Neither  Party  Domiciled  in  State  of  Divorce   ....  197 

91.  Only  one  of  the  Parties  Domiciled  in  State  of  Divorce  .  200 

92.  First    Theory  —  Jurisdiction    over  one    Party  confers 

Jurisdiction  over  the  other  also 203 

93.  Second  Theory  —  Divorce,  a  Proceeding  in  Personam   .  204 

94.  Third   Theory  —  Divorce  neither  in  Rem  nor  in  Per- 

sonam, but  Quasi  in  Rem  —  Requires  Best  Notifica- 
tion practicable  to  Non-resident  Defendant  ....  205 

95.  Exterritorial  Effect  of  Divorce,  as  respects  Costs  and 

Alimony 207 

96.  Exterritorial  Effect  of  Decree  for  Custody  of  Minor 

Children 208 


CHAPTER   VIII. 

Status  op  Legitimacy  axd  Adoption 211 

§  97.  Legitimacy  and  Adoption  Instances  of  Double  Status     .  211 

98.  Legitimacy  —  Child  Born  in  Wedlock 213 

99.  Subsequent  Legitimation  —  Intermarriage  of  Parents  of 

Infant  Bastard 215 

100.  Bastard  an  Adult  when  Parents  Marry  —  No  Intermar- 

riage of  Parents 218 

101.  Legal  Status  of  Adoption 221 


CHAPTER   IX. 

Status  of  Fiduciaries 224 

§  102.  Dual  Nature  of  Fiduciary  Status 224 

103.  Illustrations  —  Various  Classes  of  Fiduciaries     .     .     .  225 

104.  Executors  and  Administrators  —  Outline  of  Discussion  228 

105.  Appointment  and  Qualification  of  Administrators  and 

Executors 229 

106.  Incidents  of    Status  of    Personal    Representatires  — 

Their  Rights  and  Liabilities  in  Gteneral      ....  232 

107.  Suits  by  and  against  Personal  Representatives    .     .     .  235 


Xiv  TABLE  OF  CONTENTS. 

FAU 

§  108.  Right  of  Foreign  Representative  to  Sue  for  Decedent's 

Death  by  Wrongful  Act 238 

109.  Voluntary  Payment  of  Debts  to  Foreign  Represent- 

ative     242 

110.  Order  of  Payment  of  Decedent's  Debts  —  Marshalling 

of  Assets 243 

111.  Right  of  Creditor  to  Subject  Decedent's  Land  in  Hands 

of  the  Heir 245 

112.  Exoneration  of  Realty  out  of  Personalty,  and  vice 

versa  —  Contribution  between  Heirs  or  Devisees      .     247 

113.  Termination  of  Status  of  Executors  or  Administrators 

—  Auxiliary  or  Ancillary  Administrations      .     .     .  253 

114.  Status  of  Guardians 257 

115.  Status  of  Guardian  with  respect  to  Ward's  Person  .     .  258 

116.  Status  of  Guardian  with  respect  to  Ward's  Property    .  261 

117.  Status  of  Receivers  —  In  General 263 

118.  Suits  by  and  against  Receivers 266 


PART    IV. 

SITUS    OF    PERSONAL    PROPERTY. 

§  119.  Preliminary  —  Outline  of  Discussion 268 

CHAPTER  X. 

Situs  of  Chattels  and  of  Debts 270 

§  120.  Legal  and  Actual  Situs  of  Tangible  Chattels ....  270 

121.  Legal  and  Actual  Situs  of  Debts 274 

122.  Situs  of  Debt  for  Purposes  of  Voluntary  Transfer  .     .  278 

123.  Situs  of  Debt  for  Purpose  of  Taxation 281 

124.  Situs  of  Debt  for  Purpose  of  Administration  ....  283 

125.  Situs  of  Debt  for  Purpose  of  Attachment  and  Garnish- 

ment      285 

126.  Same  —  Exemptions 290 


TABLE  OF  CONTENTS.  XV 

CHAPTER   XI. 

Pisa 

Voluntary  Transfers  of  Personalty  Inter  Vivos     .    .  292 

§  127.  Preliminary  —  Various  Kinds  of  Transfer     ....  292 

128.  Absolute  Conveyances  and  Executed  Sales  of  Pei-sonalty  293 

129.  Same  —  As  to  Third  Persons 297 

130.  Sale  of  Personalty,  with  Reservation  of  Title  in  Vendor  300 

131.  Donations  Mortis  Causa 303 

132.  Chattel  Mortgages  —  Liens  upon  Personalty  ....  304 

133.  Voluntary  Assignments  for  Benefit  of    Creditors  — 

Greneral  Principles 309 

134.  What  Creditors  may  Attack  a  Voluntary  Assignment .  312 

135.  Policy  of  the  Forum 316 

CHAPTER  XII. 

Involuntary  Transfers  of  Personalty  Inter  Vivos      .  319 

§  136.  Transfers  by  Marriage 319 

137.  Involuntary  Assignments  in  Bankruptcy  or  Insolvency  320 

138.  Creditors  for  whose  Benefit  Assigfnment  disregarded    .  324 

CHAPTER  Xni. 

Transfer  by  Succession 327 

§  139.  Titles  of  Administrator  and  Distributee  distinguished  327 

140.  Persons  to  Take  as  Distributees  —  Capacity  of  Dis- 

tributees to  Take 328 

141.  Shares  of  Distributees 331 

CHAPTER  XrV. 

Transfers  of  Personalty  by  Will     ........  332 

§  142.  Transfer  by  Will,  Involuntary 332 

143.  Formal  Validity  of  Wills  of  Personalty 333 

144.  Substantial  Validity  of  the  Provisions  of  the  Will  .     .  335 

145.  Interpretation  of  the  Will 338 

146.  Same  —  Beneficiaries  —  Property  Disposed  of    .     .     .  341 

147.  Same  —  Lapse  —  Election 343 

148.  Same  —  Change  of  Domicil  after  Execution  of  Will    .  347 

149.  Revocation  of  Wills 349 

150.  Wills  in  the  Exercise  of  a  Power  of  Appointment   .     .  351 


Xri  TABLE  OF  CONTENTS. 

PART    V. 

SITUS    OF    CONTRACTS. 


PAGB 


§  151.  Contractual  Liabilities  Transitory  —  Proper  Law  to 

determine  Existence  of  Contract 355 

152.  Applications   of  Greneral  Exceptions  to  Foreigfn  Law 

somewhat  restricted  in  Case  of  Executory  Contracts      357 


CHAPTER  XV. 

Locus  Contractus 360 

§  153.  Conflicting  Views  as  to  Situs  of  Contract 360 

154.  True  View  —  Locus  Contractus  not  necessarily  a  Single 

Place,  but  may  consist  of  One  Place  for  One  Pur- 
pose, and  Another  Place  for  Another  Purpose      .     .     363 

155.  Three  Leading  Elements  in  every  Contract  —  Each 

may  have  a  Separate  Situs 367 

156.  The  Various  Incidents  or  Qualities  of  Contracts      .     .    369 


CHAPTER  XVI. 
Locus  Cklebkationis;  Locus  Solutionis;  and  Locus  Con- 

8IDERATIONIS ....      371 

§  157.  Locus  Celebrationis  —  Place  where  Contract  becomes 

finally  Binding ...     371 

158.  Same  —  Contracts  of  Agents 374 

159.  Locus  Solutionis  —  Optional  with  the  Parties  —  No 

Place  of  Performance  named 377 

160.  Same  —  Several  Places  of  Performance 380 

161.  Locus  Considerationis 382 

162.  Same  —  Considerations  Executed  and  Executory     .     ■  385 

163.  Situs    of    Particular    Contracts  —  Contracts    to    Pay 

Money 388 

164.  Negotiable  Instruments  —  Contract  of  Maker  or  Ac- 

ceptor   391 

165.  Indorser's  or  Drawer's  Contract 392 

166.  Situs  of  Insurance  Contracts 398 


TABIiB  OF  CONTENTS.  Zytt 


CHAPTER    XVn. 

PAOB 

Validity  of  Contracts .  401 

§  167.  Preliminary 401 

168.  Contracts  Prohibited  to  be  entered  into  —  In  General 

—  Lex  Loci  Celebrationis 402 

169.  Same  —  Exemptions  in  BiUs  of  Lading 405 

170.  Same  —  Insurance  Contracts 407 

171.  Capacity  to  Contract  —  Lex  Loci  Celebrationis  .     .     .  409 

172.  Formal  Validity  of  Contracts  —  Lex  Celebrationis  — 

Marriages  —  Stamps 410 

173.  Same  —  Contracts  in  Writing  —  Statute  of  Frauds      .  413 

174.  Same  —  Contracts  for  the  Sale  of  Land 415 

175.  Performance  of  Contract  Prohibited  —  Lex  Loci  Solu- 

tionis    418 

176.  Validity  of  Consideration  —  Lex  Loci  Considerationis 

—  Executory  Consideration 421 

177.  Executed   Considerations  —  Sufficiency  of   Considera- 

tion        424 

178.  Same  —  Legality  of  Consideration 427 

179.  Usurious  Considerations 429 


CHAPTER    XVIII. 

Obligation  and  Interpretation  of  Contracts    ....  438 

§  180.  Obligation  of  a  Contract 438 

181.  Obligation  of  Contract  dependent  upon  Intention  of 

Parties     «     .     .   ' 440 

182.  Negotiable  Instruments  —  Maker's  or  Acceptor's  Con- 

tract       446 

183.  Same  —  Obligation  of  Drawer's  or  Indoi'ser's  Contract  450 

184.  Obligation  to  Pay  Interest 454 

185.  Covenants  and  Contracts  touching  Land 457 

186.  Interpretation  of  Contracts 459 


CHAPTER   XIX. 

Discharge  of  Contracts 464 

§  187.  Various  Sorts  of  Discharge 464 

188.  Discharge  by  Actual  Performance  or  Tender ....  464 

b 


Cviii  TABLE  OF  CONTENTS. 

PASI 

§  189.  Discharge  by  Substituted  Agreement    ...  .467 

190.  Discharge  by  Operation  of  Law  —  In  General     ...     469 

191.  Same  —  Discharge  in  Bankruptcy 470 


PART    VI. 

SITUS    OF    TORTS   AND    CRIMES. 

CHAPTER    XX. 

5iTU8  OF  Torts 475 

§  192.  Local  and  Transitory  Actions 475 

193.  Torts,  Common  Law  and  Statutory 477 

194.  Exceptions  to  Operation  of  Lex  Loci  Delicti  ....  479 

195.  Situs  of  Tort  or  Locus  Delicti 481 

196.  Law  governing  Torts  in  General 484 

197.  Defenses  to  Actions  for  Tort 485 

198.  Damages  —  Compensatory,  Punitive,  and  Penal      .     .  488 

199.  Statutory  Torts  — Death  by  Wrongful  Act    ....  490 

200.  Death  by  Wrongful  Act  —  Increasing  Liberality  of  the 

Courts 491 

201.  Same  —  Proper  Plaintiff 493 

202.  Same  —  Other  Conditions  of  Suit 495 

CHAPTER    XXI. 

Situs  of  Crimes .    .  497 

§  203.  Crimes  generally  Local,  not  Transitory      .  .     .     ,  497 

204.  Situs  of  Crimes 498 


PART    VII. 

SITUS    OF    REMEDIES. 

CHAPTER    XXIL 

Situs  of  Remedies .    .    505 

§  205.  Nature  of  the  Remedy  —  Form  of  the  Action     .     .     .     505 
206.  Modes  of  Procedure  —  Parties  to  the  Suit      ....     509 


TABLE   OF  CONTENTS.  XIX 

PAOB 

§  207.  Process,  Pleadings,  and  Rules  of  Practice      ....  510 

208.  Admissibility  of  Evidence  —  Presumptions  of  Law  — 

Incidents  of  the  Trial 513 

209.  Exemptions 516 

210.  Certain   Defenses,   Matters  of    Remedy  —  Statute  of 

Limitations  —  Statute  of  Frauds 521 

211.  Set-offs  and  Counter-claims 525 


PART    VIII. 

PLEADING   AND   PROOF   OF   FOREIGN   LAWS. 

CHAPTER   XXIIL 

Pleading  and  Pkoof  of  Foreign  Laws .  527 

§  212.  Foreign  Laws  must  be  Specially  Pleaded  ....  527 

213.  Proof  of  Foreign  Laws .  528 

214.  Presumptions  as  to  Foreign  Laws     .....  .  530 

INDEX 535 


TABLE   OF   CASES. 


[beferkmcbs  abb  to  faobs.] 


Abbebobr  v.  Marrin  (Mass.) 295,  428 

Abington  v.  N.  Bridgewater  (Mass.) 62,  64,  67,  69,  70 

Abshire  v.  Corey  (Ind.) 467 

Abt  V.  Bank  (lU.) 397,  443,  445 

Adams  v.  Adams  (Mass.) 183,  197,  212,  213,  340 

V.  Palmer  (Me.) 160,  173 

V.  People  (N.  Y.) 499 

v.  R.  R.  Co.  (Vt.) 24,480,489 

Aikman  v.  Aikman  (Eng.) 216,  217 

Akers  V.  Demond  (Mass.)      .    .    .     18,368,372,379,388,428,433,434,436 

Alabama,  etc.  R.  R.  Co.  v.  CarroU  (Ala.) 407,  482,  487 

Albee  i;.  Albee  (111.) 499 

Alexander  v.  R.  R.  Co.  (Ohio) 407,  487,  630 

Allen  V.  Allen  (La.) 177,  532 

V.  R.  R.  Co.  (la.) 267 

V.  Thomason  (Tenn.) 83,  84,  128 

Alley  V.  Caspari  (Me.) 186,  265 

Allgood  V.  Williams  (Ala.)    .    .   59,  65,  67,  69,  70,  72,  79,  80,  81,  82,  93,  109, 

115,  117,  125 

AlUhouse  V.  Ramsav  (Penn.) 467 

Ambler  v.  Whipple  (lU.) 622 

American  Coal  Co.  v.  Allegheny  Co.  (Md.) 282 

American  Insurance  Co.  v.  Hettler  (Neb.) 277,  290 

American  Mortgage  Co.  v.  Jefferson  (Miss.) 18,  379,  380,  431 

V.  Sewell  (Ala.) 363,  431,  434 

American  Oak  Leather  Co.  v.  Bank  (Utah) 532 

Ames  V.  McCamber  (Mass.) 530 

Ames  Iron  Works  v.  Warren  (Ind.) 44,  271,  272,  304,  307 

Anderson  v.  Anderson  (Vt.) 109 

V.  Laneuville  (Eng.) 114 

V.  R.  R.  Co.  (Wis.) 492 

Andrews  v.  Avory  (Va.) 232,  233 

V.  Herriot  (N.  Y.) 506,  507 

i;.  Pond  (U.  S.) 433 

V.  Smith  (U.  S.) 265 

Anonymous  (1  Bro.  Ch.  Gas.  376) 465 

(9  Mod.  66) 249,  250 

Anstruther  v.  Chalmer  (Eng.) 339,  340,  344,  349 

Antelope,  The  (U.  S.) 21 

Anthony  v.  Rice  (Mo.) 191,  201,  203 

Applegate  v.  Smith  (Mo.) 341 

Arayo  v.  Currell  (La.) 374,  877 

Arbuckle  v.  Reaume  (Mich.) 18,  403,  404 


xxil  TABLE   OF   CASES. 

[References  are  to  Pages.] 

Armistead  v.  Blytlie  (Miss.)       434 

Armstrong  v.  Best  (N.  C.)     ....  10,  13,  49,  133,  144,  146,  147,  148,  372 

V.  Lear  (U.  S.) 231 

V.  Stone  (Va.) 93 

V.  Toler  (U.  S.) 17,  18 

Arndt  v.  Arndt  (Ohio) 187 

Arnold  v.  Potter  (la.) 431 

Arrington  o.  Arrington  (N.  C.) 94,  99,  101,  170,  183,  184 

Ash  V.  K.  R.  Co.  (Md.) 241,  492 

Askew  V.  Bank  (Mo.) 279,  312,  31(i 

Atchison  r.  Lindsey  (Ivy.) 227,236,328 

Atchison,  etc.  R.  R.  Co.  v.  Betts  (Colo.) 479,  532 

V.  Maggard  (Colo.) 287,  516 

Atherton  Co.  v.  Ives  (U.  S.)      .    8, 13, 16, 16,  49,  254,  310,  314,  315,  316,  317 

Atlantic  Phosphate  Co.  v.  Ely  (Ga.)       373,  429 

Attorney  General  v.  Bouvrens  (Eng.) .     280 

V.  Dimond  (Eng.) 280 

V.  Hope  (Eng.) 280 

Aurora,  City  of,  v.  West  (Ind.) 443,  447 

Ayer  v.  Tilden  (Mass.) 455 

r.  Weeks  (N.  H.) 59,64,67,60,71 

Aymar  v.  Sheldon  (N.  Y.) 892,  396,  397,  398,  444,  448,  453 

Backhouse  v.  Selden  (Va.) 434 

Bacon  v.  Home  (Penn.) 16,  314 

Baetjer  v.  La  Compagnie  (U.  S.) 381,  406 

Bagby  v.  R.  R.  Co.  (Penn.) 16 

Bailey  v.  Maguire  (U.  S.) 529 

Baldwin  v.  Gray  (La.) 13,  375,  446 

V.  Hale  (U.  S.) 471,  473,  474 

Balfour  u.  Davis  (Or.) 430 

V.  Scott  (Eng.> 346 

Balme  v.  Wombough  (N.  Y.) 434 

Baltimore  v.  Hussey  (Md.) 281 

Baltimore  &  Ohio  R.  R.  Co.  v.  Glenn  (Md.) 130,  318 

V.  Koontz  (U.  S.) 1.30 

Bank  v.  Balcom  (Conn.) 71,  128 

v.  Bleecker  (Minn.) 288 

V.  Davidson  (Or.) 362 

V.  Dillingham  (N.  Y.) 26 

V.  Donnally  (U.  S.) 605,  506,  513,  522 

V.  Earle  (U.  S.) 1.30,  510 

V.  Ellis  (Mass.) 26 

r.  Griswold  (N.  Y.) 377,  .391,  392 

V.  Hall  (Penn.) 419,  445 

V.  Hartwell  (Ala.) 39,  145,  272,  298 

f.  Hill  (Tenn.) 44,  45,  .304,  307 

V.  Howell  (N.  C.) 145,  147 

r.  Hubbard  (U.  S.) 392 

V.  Indiana  Banking  Co.  (III.) 397,  445 

V.  Lacombe  (N.  Y.)     .     15,  16,  17,  254,  315,  322,  326,  326,  368,  396,  397, 

443,  449 

».  Lee  (U.  S.) 43,  44,  299,  307 

w.  Low(N.  Y.) 371,  373,  389,  434,  4.S6 

V.  Motherwell  Co.  (Tenn.) ,326 

V.  National  Bank  (U.  S.) 280,  297 


TABLE  OP   CASES.  XXlll 

[References  are  to  Pages.] 

Bank  v.  Nav.  Co.  (Eng.) 863 

V.  Norwalk  (Conn.) 467 

r.  Porter  (Conn.) 466,467,513,526 

V.  Price  (Md.) 22 

f.  K.  R.  Co.  (Wis.) 616 

».  Richmond  (Va.) 281,283 

V.  Rindge  (Mass.) 27 

V.  Rindge  (U.  S.) 27 

V.  Robinson  (Conn.) 475,  476 

V.  Shaw  (N.  Y.) 462 

V.  Spalding  (12  Barb.  (N.  Y.)  302) 17,  18 

V.  Spalding  (9  N.  Y.  63) 294,  419 

V.  State  (Tenn.) 282 

t>.  Steliings  (S.  C.) 31,311,314,317 

V.  Sutton  (U.  S.) 391 

V.  Talbot  (Mass.) 414,  451,  506.  614,  626 

V.  Trimble  (Ky.) 526 

V.  Walker  (Conn.) 16,  279,  314,  316 

i;.  Wells  (Mass.) 392 

r.  Williams  (Miss.) 17,38,247 

V.  Wood  (Mass.) 371 

Barber  v.  Barber  (U.  S.) 94,  96,  96,  97,  98,  99,  104,  207 

V.  Root  (Mass.) 38,  195,  198 

Barker  v.  Brown  (Ky.) 516 

V.  Stacy  (Miss.) 43,  44,  304,  307 

Barnett  v.  Kinney  (U.  S.)     ....      10,  13,  16,  49,  271,  310,  313,  314,  317 

Barney  v.  Patterson  (Md.) 188 

Barnum  v.  Barnum  (Md.) 136 

Barrera  v.  Alpuente  (La.) 141,  143 

Barretts.  Dodge  (R.L) 371,378,389,444,447 

Barter  v.  Wheeler  (N.  H.) 381 

Barth  v.  Backus  (N.  Y.)    .     .      16,  272,  310,  311,  314,  315,  320,  322,  324,  826 

V.  Furnace  Co.  (111.) 610 

Barton  v.  Barbour  (U.  S.) 267 

Bartsch  v.  Atwater  (Conn.) 469 

Bascom  r.  Zediker  (Neb.) 434,437 

Bath  Gaslight  Co.  v.  ClafEy  (N.  Y.) 632 

Baum  V.  Birchall  (Penn.) 146,  147,  372,  373,  374,  388,  443 

Bauserman  v.  Charlott  (Kan.) 190,  522 

Baxter  2;.  Willey  (Vt.) 36,37 

Baxter,  etc.  Bank  v.  Talbot  (Mass.) 414,451,506,614,525 

Beach  r.  R.  R.  Co.  (N.  Y.) 491 

Beal  V.  State  (Ind.) 603 

Bearce  v.  Barstow  (Mass.) 430 

Belirensmeyer  u.  Kreitz  (111.) 120 

Belknap  Sav.  Bank  v.  Robinson  (Conn.) 475,  476 

Bell  V.  Kennedy  (Eng.) 119,  124 

V.  Morrison  (U.  S.) 522 

V.  Packard  (Me.)    .     .     .    144,  146,  147,  363,  371,  372,  373,  378,  380,  388 

Belt  V.  R.  R.  Co.  (Tex.) 487,  492 

Bempde  v.  Johnstone  (Eng.) 73,  109,  124 

Benbow  v.  Moore  (N.  C.)       531 

Bennett  v.  B  &  L.  Association  (Penn.) 433 

Bentiey  v.  Whittemore  (N.  J.) 13,  14, 15,  311,  312,  313,  316,  317 

Berrien  v.  Wright  (N.  Y.) 434,  436 

Berry  v.  Davis  (Tex.) 277.  288 


XXiv  TABLE   OP  CASES. 

[References  are  to  Pages.] 

Besse  v.  Pellochoux  (III.) 176,  177 

Bethell  i;.  Bethell  (Ind.) 32,33,87,377,457 

Bettys  V.  R.  R  Co.  (Wis.) 490 

Beverwyck  Brewing  Co.  v.  Oliver  (Vt.) 294,  296,  372 

Bevierr.  CoveIl(N.  Y.) 430 

Bible  Society  v.  Pendleton  (W.  Va) 40,  336,  337 

Bigelow  V.  Bumham  (la.) 432 

Bingham's  Appeal  (Penn.) 236,362,364 

Birdseye  v.  Underbill  (Ga.) 279,  318 

Birtwhistle  v.  Vardill  (Eng.) 33,  34,  36,  133,  216 

Black  V.  Zacharie  {U.S.) 272,  278,  280,  293,  312 

Blackinton  v.  Blackinton  (Mass.)   .    .    .    .  8,  97,  98,  101,  173,  180,  191,  207 

Blackwell  v.  Webster  (U.  S.) 404,  420,  422 

Blake  v.  Williams  (Mass.) 280,  322,  325 

Bloomer  r.  Bloomer  (N.  Y.) 349 

Blythe  v.  Ayres  (Cal.) 76,  76,  84,  86,  91,  92,  133,  216,  220 

Boehme  v.  Rail  (N.  J.) 32,  130,  300,  304 

Booth  V.  Clark  (U.  S.) 263,  264,  266,  267,  321,  322 

Boothby  v.  Plaisted  (N.  H.) 294,  296,  384,  428 

Borden  v.  Fitch  (N.  Y.)     . 103,  104 

Borland  v.  Boston  (Mass.) 67,  70,  71,  118,  281 

Boston  Investment  Co.  v.  Boston  (Mass.) 130 

Botany  Worsted  Mills  v.  Knott  (U.  S.) 366,  406 

Boulware  v.  Davis  (Ala.) 264,  266,  267 

Bowditch  V.  Saltyk  (Mass.) 340 

Bowen  v.  Newell  (N.  Y.) 448 

Bowersox  v.  Gill  (Penn.) 190 

Bowles  V.  Field  (U.  S.) 10,  11,  31,  49, 147,  411,  428,  514 

Bowman  v.  Miller  (Va.) 433,  484,  436 

Boyce  v.  R.  R.  Co.  (la.) 22 

Boyd  V.  Selma  (Ala.) 283 

Boykin  v.  Edwards  (Ala.) 516 

Boyle  V.  Zacharie  (U.  S.) 389 

Brabston  v.  Gibson  (U.  S.) 893,  443,  447 

Bradlaugh  v.  De  Rin  (Eng.) 393,'  394 

Bradley  v.  Bander  (Ohio) 281,  282 

Bragg  V.  Gaynor  (Wis.) 288^  289 

Brantford  City,  The  (U.  S.) 356,  362,  366,  406,  428,  484 

Brauer  v.  Compagnia  (U.  S.) 363 

Breitung,  Inre  (Wis.) 39ft  400 

Bridger  r.  R.  R.  Co.  (S.  C.) 486 

Bridges  v.  GriflBn  (Ga.) 282 

Briggs  V.  Latham  (Kan.) 378,  394,  897,  442,  462 

Brockway  v.  Express  Co.  (Mass.) 406 

Brodie  v.  Barry  (Eng.) 248,  257,  346 

Bronson  v.  Lumber  Co.  (Minn) 29  33  515 

Brook  17.  Brook  (Eng.) 149,  162,  W.  163 

V.  Van  Nest  (N.  J.) 393^  394 

Brooke  v.  R.  R.  Co.  (Penn.) 375 

Brown  v.  Bank  (la.) !    .    !    '.    430 

V.  Bank  (Ohio) !    '.     36  37 

V.  Brown  (Eng.) *.'.'.    342 

V.  Browning  (R.  L) 21,  403 

V.  Finance  Co.  (U.  S.) 365,  433 

».  Jones  (Ind.)        448,462 

V.  Lynch  (N.  Y.) 84  86 


TABLE  OF  CASES.  XXV 

[Beferencea  an  to  Fagao.] 

Brown  v.  R.  R.  Co.  (Penn.) ,    ...    881 

V.  Richardson  (La.) 247 

V.  Wright  (Ark.) 531,  632 

Bruce  ».  Bruce  (Eng.) 68,  73,  119,  120, 124,  328,  331 

V.  U.  R.  Co.  (Ky.) 25,  241 

Brunei  v.  Brunei  (Eng.) 118 

Bryan  v.  Brisbin  (Mo.) 316 

Bryant  u.  Edson  (Vt.) 373,378,389,448 

Buchanan  v.  Bank  (U.  S.) 872,  433,  436 

V.  Hubbard  (Ind.) 631,  632 

Bucher  ».  B.  R.  Co.  (U.  S.) 529 

Buck  V.  Miller  (Ind.) 281 

Bucy  V.  R.  R.  Co.  (Miss.) 287 

Building  &  L.  Ass'n  v.  Logan  (U.  S.) 431 

Bull  V.  Conroe  (Wis.) 517 

Bullock  V.  Bullock  (N.  J.) 207,  512 

Burbank  U.Payne  (La.) 226,233 

Burchard  v.  Dunbar  (111.) 605,  506.  507 

Burgett  V.  Williford  (Ark.) 522 

Burlen  v.  Shannon  (Mass.) 99,  103,  195,  206 

Burlington,  etc.  R.  R.  Co.  v.  Thompson  (K«n.) 290,  516,  519 

Burlington  University  v.  Barrett  (la.) 334 

Burnett  v.  R.  R.  Co.  (Penn.) 381,  406,  411 

Burns  v.  R.  R.  Co.  (Ind.) 25,  241,  492 

Burtis  V.  Burtis  (Mass.) 94,  95,  97,  101 

Butler  V.  Washington  (La.) 190,  201 

V.  Wendell  (Mich.) 10,  271, 279,  810,  312,  318,  320,  324 

Byers  v.  McAuley  (U.  S.) 228,  265,  274 

Caoill  v.  Woodridge  (Tenn.) 44,  45,  264,  265,  268 

Caledonia  Insurance  Co.  v.  Wenar  (Tex.) 287 

Calloway  i;.  Bryan  (N.  C.) 156 

Cameron  v.  Watson  (Miss.) 40,  137,  139,  334 

Campbell  v.  Coon  (N.  Y.) 459 

V.  Crampton  (U.  S.)    146,  148,  149,  150,  160, 163, 166,  169,  410,  411,  412 

V.  Tousey  (N.  Y.) 229,  231,  232,  243 

Canadian  Pac.  R.  R.  Co.  v.  Johnson  (U.  S.) 524 

Capper's  Will,  In  re  (la.) 628 

CarUsle  v.  Chambers  (Ky.) 394,  454 

Carnegie  v.  Morrison  (Mass.)     .     .    32,  857,  376,  392,  411,  412,  417,  419,  458 
Carnegie  Steel  Co.  v.  Construction  Co.  (Tenn.)  .    .     372,  388,  394,  .396,  452 

Carpenter  v.  Bell  (Tenn.) 29,  32,  136,  333 

V.  R.  R.  Co.  (Me.) 532 

V.  Strange  (U.  S.) 188 

Carr,  Ex  parte  (Kan.) 601 

Carson  v.  R.  R.  Co.  (Tenn.) 519,  520 

U.Smith  (Mo.) 484,488,489,515 

Carter  v.  Goode  (Ark.) 479,  480 

Case  V.  Dodge  (R.  L) 10,  11,  147 

Cassidy,  Succession  of  (La.) 30,  33,  37,  457,  458 

Castro  V.  Dlies  (Tex.) 175,  177,  178,  179,  180 

Catlin  V.  Silver  Plate  Co.  (Ind.)     ...      13, 16,  46,  263,  264,  266,  267,  268 

Caulfield  v.  Sullivan  (N.  Y.) 340,  341 

Cavanaugh  u.  Nav.  Co.  (N.  Y.) 481,495,624 

Central  Trust  Co.  v.  Burton  (Wis.) 390,  431,  434 

».  R.  R.  Co.  (U.  S.) 287 


XXVI  TABLE   OF   CASES. 

[References  are  to  Pages.] 

Chafee  v.  Bank  (Me.;    ....     13,  15,  31,  130,  311,  312,  314,  316,  317,  325 
Chamberlain  v.  Chamberlain  (N.  Y.)     40, 130, 137, 189, 140,  334,  335,  387,  338 

V.  Napier  (Eng.) 340 

Chambers  v.  Church  (R.  I.) 419,  420 

Champon  u.  Champon  (La.) 94,98,177,201 

Chapman  v.  Chapman  (111.) 96,  98,  99,  100,  101,  184 

V.  Chapman  (Kan.) 198 

V.  Robertson  (N.  Y.)   .    .     .    .      31,  39,  362,  363,  378,  389,  390,  431,  432 

Charlestown  v.  Boston  (Mass.) 87,  93 

Chartered  Bank  of  India  v.  Nav.  Co.  (Eng.) 363 

Chase  v.  Chase  (Mass.) 170,  198 

V.  Henry  (Mass.) 472 

Cheelyr.  Clayton  (U.  S.) 94,99,195 

Cheever  v.  Wilson  (U.  S.) 96,  96,  99,  101,  190,  196 

Chenery  v.  Waltham  (Mass.) 123 

Chicago,  etc.  R.  R.  Co.  v.  Ferry  Co.  (U.  S.) 628 

V.  Moore  (Neb.) 520 

V.  Packet  Co.  (III.) 44,  45,  264,  265,  266 

0.  Sturm  (U.  S.) 289,  290,  521 

China  Mutual  Ins.  Co.  v.  Force  (N.  Y.) 187 

Chipman  y.  Peabody  (Mass.) 29,30,321 

Chitty  V.  Chitty  (N.  C.) 59,  72,  111,  112 

Cincinnati,  H.  &  D.  R.  R.  Co.  v.  McMuUen  (Ind.) 482,  486,  492 

City  of  Aurora  v.  West  (Ind.) 443,  447 

City  of  Carlisle,  The  (U.  S.) 514 

City  of  Hartford  »;.  Champion  (Conn.) 115,117,121,125 

Claflin  V.  Meyer  (La.) 294,  295,  296,  372,  377 

Clark  t;.  Child  (Mass.) 456 

V.  Clark  (N.  J.) 167,  168 

V.  Clark  (Mass.) 172,  195 

V.  Graham  (U.  S.) 28,  33 

V.  Peat  Co.  (Conn.) 279 

V.  Searight  (Penn.) 378 

Clarke  v.  Bank  (Ark.) 529 

Coad  V.  Home  Cattle  Co.  (Neb.) 437 

Cochran  v.  Benton  (Ind.) 32,  38,  247 

V.  Ward  (Ind.) 416,  418,  457,  525 

Cockle  V.  Flack  (U.  S.) 431 

Codmanv.  Krell  (Mass.) 296,330,340 

Coffinj;  V.  Dodge  (Mass.) 21,  26 

Coffman  v.  Bank  (Miss.) 392,  397,  439 

Coghlan  y.  R.  R.  Co.  (U.  S.) 363,  390,  455,  456 

Colburn  v.  Colburn  (Mich.) 111.  183,  184 

V.  Holland  (S.  C.) 73,  95,  96,  120 

Cole  V.  Cunningiiam  (U.  S.)  .     .    .     .13,  16,  49,  267,  311,  314,  324,  325,  326 

Collins  V.  Collins  (N.  Y.) 160,  204 

Columbian  Government  v.  Rothschild  (Eng.) 510 

Commercial  Bank  v.  Davidson  (Or.) 362 

V.  Motherwell  Co.  (Tenn.) 326 

V.  R.  R.  Co.  (Wis.) 516 

Commonwealtli  v.  Andrews  (Mass.) 502 

V.  Avcs  (Mass.) 21 

V.  Bassford  (N.  Y.) 47,  423,  424,  428 

V.  Blanding  (Mass.) 502 

i;.  Chiovaro  (Mass.) 501 

V.  Gaines  (Ky.) 281 


TABLE   OP   CASES.  XXVll 

[References  are  to  Pages.] 

Commonwealth  v.  Graham  (Mass.) 87,  98,  167,  531 

i;.  Green  (Mass.) 21,22,24 

V.  Kunzmann  (Penn.) 497,  498 

t;.  Lane  (Mass.)        10,  18,  19,  20,  21,  26, 161,  164,  167,  159,  160,  Itil,  171 

V.  Linton  (Va.) 500 

V.  Macloon  (Mass.) 499,500,502,503 

V.  Pettes  (Mass.) 501 

V.  Putnam  (Mass.) 19,  159 

r.  R.  R.  Co.(Va.) 281,282 

r.  Uprichard(Ma8s.) 502,503 

V.  Van  Tuyl  (Ky.) 502 

V.  White  (Mass.) 502 

Compton  V.  Bearcroft  (Eng.) 167 

Concord  v.  Ruraney  (N.  H.) 105,  106,  107,  108 

Connor  v.  Donnell  (Tex.) 432 

Consequa  v.  Fanning  (N.  Y.) 455 

Cook  V.  Cook  ( Wis.) 8,  96,  96,  101,  102,  163,  164,  165,  172,  201 

V.  Litchfield  (N.  Y.) 372,  394 

V.  Moffat  (U.  S.) 471,  473,  474 

V.  Van  Horn  (Wis.) 45,  316,  318 

Cooper  y.  Beers  (111.) 64,71,120,121,328 

V.  Earl  of  Waldegrave  (Eng.) 455 

V.  Reynolds  (U.  S.) 207 

V.  Sandford  (Tenn.> 455 

Corbett  u.  Littlefield  (Mich.) 44.  307,  309 

Cottins  y.  De  Sartiges  (R.L) 352,353,354 

Cottrell  V.  Cottrell  (Eng.) 350 

Cox  i;.  Cox  (Ohio) 196,201,203 

V.  United  States  (U.  S.) 390,  443 

Craig  V.  Gunn  (Vt.) 289 

i;.  Williams  (Va.) 44,307,308 

Crapo  V.  Kelly  (U.  S.)  .     14,  15,  44,  45,  271,  273,  274,  310,  311,  322,  324,  325 

Crawford  v.  Bank  (Ala.) - 397,  455 

i;.  State  (Miss.) 157,  158,  159 

V.  Wilson  (N.  Y.) 69,  64,  67,  69,  74 

Cromwell  v.  County  of  Sac  (U.  S.) 431,  456 

Cronan  V.  Fox  (N.  J.) 44,271,272,274,304,307 

Cross  V.  Brown  (R.  I.) 277,  289 

V.  Cross  (N.  Y.) 197,  204 

V.  Trust  Co.  (N.  Y.)     .     11,  12,  137,  140,  253,  272,  333,  335,  337,  338,  347 

Crouch  V.  Dabney  (Va.) 285 

Crowley  y.  R.  R.  Co.  (N.  Y.) 491 

Crumlish  v.  Improvement  Co.  (W.  Va.) 357,  391 

Crusoe  v.  Butler  (Miss.) 341 

Culver's  Appeal  (Conn.) 106,109 

Cummington  v.  Belchertown  (Mass.)     .      44,  47,  98,  150,  151,  154,  162,  171, 

196,  19T 

Curran  v.  Craig  (U.  S.) 265 

Curtis  ;;.  Hutton  (Eng.) 40,  140 

V.  Leavitt  (N.  Y.) 378,  390,  434 

r.  R.  R.  Co.  (N.  Y.) 362,  380,  381 

Cutter  V.  Davenport  (Mass.) 232,  235 

Cutts  V.  Haskins  ( Mass.) 93 

Da  Cunha,  In  re  (Eng.) .141 

Dale  V.  Irwin  (111.) .    .    .    ,-      60 


jcxviii  TABLE  OF  CASES. 

[Beferencea  are  to  Pages.] 

Dale  V.  R.  R.  Co.  (Kan.) 22,  24,  480,  489 

Dalhousie  v.  M'Douall  (Eng.) 86,  216,  217 

Dalpay,  In  re  (Minn.) 16,273,294,310,312,314 

Dalrymple  v.  Dalrymple  (Eng.) 6,  167 

Dammert  v.  Osborn  (N.  Y.) 11,  140,  336,  337,  340 

Daniel  v.  HUl  (Ala.) 88,  89 

Darby  D.Mayer  (U.S.) 28,333 

D'Arcy  v.  Ketchum  (U.  S.) 189,  190 

Darden  v.  Wyatt  (Ga.) 86,  88 

Davidow  r.  R.  R.  Co.  (U.  S.) 494 

Dayifl  v.  Estey  (Mass.) 263,  266 

r.  Gray  (U.  S.) 267 

r.  Morton  (Ky.) 625 

V.  R.  R.  Co.  (Wis.) 406 

V.  Williams  (Miss.) 299 

Davison  r.  Gibson  (U.  S.) 531,532 

Dawes  v.  Boylston  (Mass.) 255,  285 

V.  Head  (Mass.) 225,  227,  231,  243,  253,  264,  25ti 

Dawson  v.  Jay  (Eng.) 259 

Dealy  v.  United  States  (U.  S.) 601 

Debevoise  v.  R.  R.  Co.  (N.  Y.) 490,  491 

De  Bonneval  v.  De  Bonneval  (Eng.) Ill 

De  Brimont  v.  Penniman  (U.  S.) 180,  188 

Decouche  v.  Savetier  (N.  Y.) 180,  331 

Dedham  v.  Natick  (Mass.) 83,  95 

De  Haber  v.  Queen  of  Portugal  (Eng.) 610 

De  Ham  v.  R.  R.  Co.  (Tex.) 482,  483 

Dehon  ».  Foster  (Mass.) 326 

De  Jarnett  v.  Harper  (Mo.) 81,  82,  83,  93 

De  La  Montanya  v.  De  La  Montanya  (Cal.)  .     67,  69,  70,  131,  191,  207,  209 

De  La  Vega  v.  Vianna  (Eng.) 512 

DeMeli  t;.  DeMeli  (N.  Y.) 116,124,190,191 

Dennick  v.  R.  R.  Co.  (U.  S.) 25,  240,  475,  480,  492,  494 

Denny  r.  Bennett  (U.  8.) 471,  472 

V.  Williams  (Mass.) 465 

Depasw.  Mayo  (Mo.) 37,174 

Depeau  v.  Humphreys  (La.) 434 

Derringer  v.  Derringer  (Del.) 243 

Desesbats  v.  Berquier  (Penn.) 334 

Desmare  v.  United  States  (U.  S.) 62,  67,  70,  72,  109,  126 

De  Sobry  v.  De  Laistre  (Md.) 226,  243,  254 

Despard  v.  Churchill  (N.  Y.) 10,  39,  253,  254,  255,  328,  338 

De  Witt  p.  Buchanan  (N.  Y.) 475,476 

De  Wolf  ».  Johnson  (U.  S.) 389,  390,  431,  433,  436 

Dial  V.  Gary  (S.  C.)     .    .     13,  225,  227, 229,  281, 232,  233,  234,  242,  271,  275, 

277,  278,  279,  280,  284 

Dickinson  v.  Edwards  (N.  Y.) 362,  363,  380,  419,  432,  436 

r.  Hoomes  (Va.) 37,245,246 

Dickinson.  Ex  parte  (S.  C.) 10,  11,  314,  317 

Dickson  v.  Dickson  (Tenn.) 19,  21,  25,  160,  167,  158 

Dike  f.  R.  R.  Co.  (N.  Y.) 380,  489 

Ditson  V.  Ditson  (R.  L) 201,  203 

Dixon  V.  State  (Tex.) 502 

Doerr  v.  Forsythe  (Ohio) ,    .  98,  203 

DofTlioni  v.  Crispin  (Eng.) 330 

Dolan  V.  Green  (Mass.) 296,  373,  428 


TABLE  OP   CASES.  XXIX 

[References  are  to  Pages.] 

Dolphin  V.  Robins  (Eng.)       96,  97,  99, 104, 199 

Don  V.  Lippmann  (Eng.) 618,  623 

Don's  Estate  (Eng.) 216 

Donald  v.  Hewitt  (Ala.) 46 

Donovan  v.  Pitcher  (Ala.) 17,  21 

Doolittle  V.  Lewis  (N.  Y.) 242,  277 

Dord  V.  BonafEee  (La.)       372,  377 

Dorsey  v.  Dorsey  (Penn.) 199 

V.  Maury  (Miss.) 188 

Doty  V.  Hendrix  (N.  Y.) 837 

Dougherty  v.  Snyder  (Penn.) 61,  94,  96,  146 

Doughty  i;.  Doughty  (N.  J.) 191,  201,  204,  206 

Douglas  V.  Bank  (Tenn.) 16,  317,  818,  394,  896,  453 

i;.  Douglas  (Eng.) 79,  89,  90,  127,  129 

V.  Insurance  Co.  (N.  Y.) 130,  287 

Dow  V.  Blake  (111.) 207 

V.  Sudbury  (Mass.)     .    .    • 281 

Downer  v.  Chesebrough  (Conn.)  ....  414,  415,  451,  605,  506,  514,  525 
Drake  v.  R.  R.  Co.  (Mich.) 518 

V.  Rice  (Mass.) 507 

Dresser  v.  Illuminating  Co.  (U.  S.) 80,  88,  93 

Drummond  v.  Drummond  (Eng.) 248,  261 

Dugan  V.  Lewis  (Tex.) 431 

Duke  of  Brunswick  v.  King  of  Hanover  (Eng.) 510 

Dumaresly  v.  Fishly  (Ky.) 167,  168 

Duncan  v.  United  States  (U.  S.) 890 

Dunham  y.  Dunham  (111.) 101,164,191,199,203,205 

Dunn  V.  Adams  (Ala.) 531 

Dunscomb  v.  Bunker  (Mass.) 894 

Dupont  V.  Quebec  S.  S.  Co.  (Canada) 481 

Dupuy  V.  Wurtz  (N.  Y.)     .    .    65,  67,  69,  70,  71,  72, 109,  114,  115,  117,  121, 

122,  124,  334 

Dutcher  v.  Dutcher  (Wis.) 95,  98 

Dwight  V.  Boston  (Mass.) 282 

Dyer  v.  Osborne  (R.  I.) 282 

Dykes  V.  Lockwood  (Kan.) 281 

Earl  r.  Dresser  (Ind.) 258,261 

Earl  of  Winchelsea  v.  Garetty  (Eng.) 248,  249,  250 

East  Tenn.  R.  R.  Co,  v.  Kennedy  (Ala.) 277,  519,  620 

V.  Lewis  (Tenn.) 486 

Edgerly  *;.  Bush  (N.  Y.)  .  .  .  .  10,  14, 15,  48,  44,  272,  300,  304,  307,  484 
Edwards  v.  Jones  (N.  C.) 188 

V.  Kearzey  (U.  S.)       439,  517 

Egbert  v.  Baker  (Conn.) 13,  279,  310,  312,  313,  317,  820,  324 

Elbers  v.  Insurance  Co.  (N.  Y.) 122,  124 

Elder  o.  Reel  (Penn.) 204 

Elliott  u.  Elliott  (Md.)       156 

f.  Lord  Minto  (Eng.) 248 

Ellis  i;.  Ellis  (Minn.) 8,164,196,198 

V.  White  (la.) 198 

Elsasser  v.  Haines  (N.  J.) 188 

Emanuel  r.  White  (Miss.) 443,447 

Embry  v.  Millar  (Ky.) 233,  236 

Emery  v.  Berry  (N.  H.) 629 

V.  Clough  (N.  H.) 271.  804 


XXX  TABLE   OF   CASES. 

[References  are  to  Pages.] 

Energia,  The  (U.  S.) 379,  406 

Ennisi-.  Smith  (U.  S.) 72,79,111,122,124,328,329,331 

Enoliin  D.  Wylie  (Eng.) 339,340,342 

Equitable,  etc.  Society  v.  Clements  (U.  S.) 399 

V.  Nixon  (U.  S.) 398,  408 

V.  Trimble  (U.  S.)       398,  409 

Erman  ?;.  Lehman  (La.) 294,295,296,309 

Eureka  Springs  Co.  v.  Timmons  (Ark.) 530 

Evans  v.  Cleary  (Penn  ) 508,  510 

V.  Tatem  (Penn.) 233.  236 

Everett  r.  Vendryes  (N.  Y.) 392,394,396,397,398,449 

Evey  tJ.  R.  R.  Co.  (U.  S.) 475,477,480,485,488,490,515 

Ex  parte  Carr  (Kan.) 501 

Dickinson  (S.  C.) 10,  11,  314,  317 

Kinney  (U.  S.) 11,  152,  153,  497,  498 

McNeely  (W.  Va.) 500 

Picquet  (Mass.) 231,235 

Rogers  (Tex.) 501 

Smith  (U.  S.) 504 

Exchange  Bank  i;.  Hubbard  (U.  S.) 3G2 

Fairchild  v.  Fairchild  (N.  J.) 197 

Falls  V.  Sav.  &  L.  Co.  (Ala.) 434 

Fanning  v.  Consequa  (N.  Y.) 455 

Fantr.  Miller  (Va.) 388,394,412.434 

Farmers'  Loan  &  T.  Co.  v.  Tel.  Co.  (N.  Y.) 264,  266,  267 

Farmers'  Nat.  Bank  v.  Sutton  (U.  S.) 391 

Faulkner  v.  Hyman  (Mass.)       ...      15,  16,  46,  61, 130,  313,  314,  315,  318 

Fatiton  V.  Middlebrook  (Conn.) 522 

Faxton  v.  McCosh  (la.) 282 

Fay  r.  Haven  (Mass.) 225,227,231,233,236,243,253,255 

Felch  V.  Bugbee  (Me.) 392 

Fellows  V.  Miner  (Mass.) 11,  139,  336,  .337 

Felt  0.  Felt  (N.  J.) 170,  191,  206 

Ferguson  v.  Crawford  (N.  Y.) 197 

Ferris  v.  Kimble  (Tex.) 281 

Fessenden  v.  Taft  (N.  II.) 31,  390,  428 

Finch  V.  York  Co.  (Neb.) 282 

Findley  v.  Hall  (Ohio)       374,  377,  434 

First  Nat.  Bank  v.  Balcom  (Conn.) 71,  128 

u.  Dillingham  (N.  Y.)      . 26 

V.  Hall  (Penn.) 419,445 

r.  Price  (Md.) 22 

V.  Shaw  (N.  Y.) 462 

V.  Walker  (Conn.) 16,  279,  314,  316 

Firth  v.  Firth  (N.  J.) 61,70,74,109,117,118,133 

Fislier  v.  Parry  (Ind.) 457 

Fithian  v.  R.  R.  Co.  ( Penn.) 290 

Flagg  V.  Baldwin  (N.  J.) 384,  424,  428,  536 

Flannery's  Will  (Penn.) 231,  2-32,  334 

Fletcher  v.  Insurance  Co.  (U.  S.) 379,  398,  409 

Flood  V.  Growney  (Mo.) 124 

Florance's  Will  (N.  Y.) 96,  98 

Flower  v.  Flower  (N.  J.) 99,  206 

Flukes,  In  re  (Mo.) 521 

Foley's  Estate  (Penn  )       82,93 


TABLE  OP   CASES.  XXXi 

[References  are  to  Pages.] 

Fonsecar.  Cunard  S.  S.  Co.  (Mass.) 406 

Ford  V.  Ford  (Mich.) 40,  3o9,  341 

D.Ford  (La.) 177,178 

V.  Ford  (Wis.)    .     .  30,  32,  33,  137,  333,  334,  385,  337,  339,  840,  341,  348 

r.  Insurance  Co.  (Ky.) 398,399,408,421 

Forepaugh  v.  R.  R.  Co.  (Penn.) 400 

Fosdick  V.  Fosdick  (U.  I.) Ill,  199 

Foss  u.  Nutting  (Mass.) 510 

Foster  v.  Waterman  (Mass.) 92,  189,  192,  221, 223 

Foute  V.  State  (Tenn.) 501 

Fowler,  Appeal  of  (Penn.) 271,  279,  293 

Fowler  v.  Bell  (Tex.) 304 

Fox  V.  Adams  (Me.) 315 

Frank  v.  Bobbitt  (Mass.)      ...   10,  13,  14,  16,  271,  310,  313, 317,  318,  324 

Frazier  v.  Boggs  (Fla.) 30,  32,  33,  136,  3-33 

Fred  Miller  Brewing  Co.  v.  De  France  (la.) 294,  428 

Freeman,  Appeal  of  (Conn.)      .     10,  11,  17,  131,  141,  145,  146,  147,  372,  374 

Freeman  v.  Alderson  (U.  S.) 185 

Freese  V.  Brownell  (N.  J.) 392,397,432 

Freetown  v.  Taunton  (Mass.) 83,  84 

Frost  V.  Brisbin  (N.  Y.) 59 

Fry's  Case  (Penn.) 60 

Fulham  v.  Howe  (Vt.) 122 

Fuller  V.  Fuller  (Ala.) 158 

V.  Steiglitz  (Ohio) 13,  16,  279, 310,  311,  316,  525,  526 

Furgeson  v.  Jones  (Or.) 221,  222,  223 

Fuss  r.  Fuss  (Wis.) 175,177,178,179,180 

Gaiwes,  In  re  (La.) 189 

Ganer  v.  Lanesborough  (Eng.) 529 

Garden  City  Sand  Co.  v.  Miller  (lU.) 458 

Gardner  r.  Lewis  (Md.) 11,18,318,529,5.30 

Garner  v.  Garner  (Md.) 157 

V.  Wright  (Ark.) 531 

Garr  v.  Stokes  (N.  J.) 512 

Garrettson  v.  Bank  (U.  S.) 373,  392,  411 

Gay  V.  Ralney  (III.) 394,  452 

Gelstonr.  Hoyt  (U.  S.) 187 

Geoghegan  v.  Atlas  S.  S.  Co.  (N.  Y.) 481 

Gettys  y.Gettys  (Tenn.) 198,199 

Gibbs  V.  Fremont  (Eng.) 455 

Gibson  v.  Insurance  Co.  (U.  S.) 898,  399,  417,  443 

V.  Sublett  (Ky.) 508 

Gilchrist  v.  Oil  Co.  (W.  Va.) 529 

Gilman  n.  Oilman  (Me.) 62,  65,  67,  69,  70,  79,  117,  123,  840 

y.  Ketchum  (Wis.) 13,16,264,265,206,267 

V.  Lockwood  (U.  S.) 471 

V.  Stevens  (N.  H.) 469 

Gist  V.  Tel.  Co.  (S.  C.) 424,  428,  532 

Glaser  v.  Priest  (Mo.) 262 

(ilenmavis,  The  (U.  S.) 363,  406 

Glenn  r.  Smith  (Md.) 232,23.3,243 

V.  Thistle  (Miss.) 30,  32,  426 

Glenny  Glass  Co.  v.  Taylor  (Ky.) 374 

Glidden  v.  Cliamberlain  (Mass.) 484 

Goddard  v.  Foster  (U.  S.) 515 


XXXil  TABLE  OP   CASES. 

[References  are  to  Pages.] 

Golson  r.Ebert  (Mo.) 377 

Goodall  y.  Marshall  (N.  H.) 226,264,328 

Goodman,  Trusts  of  (Eng.) 85,  216 

Goodman  v.  Goodman  (Eng.) 35,  216 

Goodricli  v.  Houghton  (N.  Y.) 405 

Goods  of  Reid  (Eng.) 351 

Goodwin  v.  Jones  (Mass.) 23.5 

Graham  v.  Bank  (N.  Y.) 177,  272,  466 

Grand  Lodge  v.  New  Orleans  (U.  S.) 617 

Grant  v.  Healy  (U.  S.) 391 

Graveley  v.  Graveley  (S.  C.)     .     .     .      227,  229,  230,  232.  253,  254,  265,  256 
Gravest'.  Johnson  (Mass.) 294 

V.  Roy  (La.) 318 

Gravillon  v.  Richards  (La.) 328 

Gray  r.  Holmes  (Kan.) 33,34,36,133,222 

Great  Western  Tel.  Co.  v.  Purdy  (U.  S.) 622 

Green  r.  Iron  Works  (N.  J.) 313,316 

V.  Van  Buskirk  (6  Wall.  307)     .  8,  11,  13,  46,  49,  272,  304,  305,  316,  521 

V.  Van  Buskirk  (7  Wall.  139) 8,  10,  187 

Greene  v.  Greene  (Mass.) 69,  96,  102,  129 

Greenhow  v.  James  (Va.) 149,  213 

Greenwald  v.  Freese  (Cal.) 443,  457,  462 

Greenwoodv.  Curtis  (Mass.) 17,20,21,47,419,424,429 

Gregory  v.  Gregory  (Me.) 133,  164,  196,  197,  198 

Grimmett  v.  Witherington  (Ark.) 258,  259,  261 

Griswold  v.  Golding  (Ky.) 444 

V.  Waddington  (N.  Y.) 18 

Gross  V.  Jordan  (Me.) 366,  444 

Grove,  In  re  (Eng.) 216 

Grover  &  B.  M.  Co.  v.  RadclifEe  (U.  S.) 190 

Guarantee  Co.  r.  Bank  (Va.) Ill 

Guerney  v.  Moore  (Mo.) 21,  26,  27 

Guier  v.  O'Daniel  (Penn.) 62,  65,  73,  74,  79,  116,  120,  124,  328 

Guildhall,  The  (U.  S.) 400 

Guillander  i-.  Howell  (N.  Y.)     .     .    .      29,  39,  42,  46,  271,  272,  273,  300,  31 1 

Gulick  r.  Gulick  (N.  Y.) 233,  230 

Gunnr.  Barry  (U.  S.) 517 

Guthrie  i;.  Lo wry  (Penn.) 188 

Haogin  v.  Haggin  (Neb.) 632 

Hairston  V.  Hairston  (Miss.) 62,65,115,117,177,178,272,331 

Hale  7'.  Nav.  Co.  (Conn.) 881,382,407 

HalU.  Cordell  (U.  S.) 363,391,392,414,525 

V.  Harrison  (Mo.) 236,  242,  284,  285 

Hallett  V.  Bassett  (Mass.) 65,  69,  70,  79,  118,  124 

Halley  v.  Ball  (111.) 510 

Halsted  v.  Straus  (U.  S.) 62 

Hamilton  v.  Chouteau  (U.  S.) 266 

Hancock  Nat.  Bank  v.  Ellis  (Mass.) 26 

Handley  v.  Harris  (Kan.) 44,  304,  307 

Hanks  v.  State  (Tex.) 497,  501 

Hanley  v.  Donoghue  (U.  S.) 529 

Hanna  v.  R.  R.  Co.  (111.) 489 

Hanover  v.  Turner  (Mass.) 198 

Hanover  Nat.  Bank  r.  Howell  (N,  C.) 145,147 

Harding  r.  Alden  (Me.)      .    88,94,95,96,97,98,183,184,196,201,203.208 


TABLE  OF  CASES.  ZXXlll 

[Beferencea  are  to  Pages.] 

Hardware  M'fg  Co.  v.  Lang  (Mo.) 277,  290 

Harford  v.  Morris  (Eng.) 16» 

Harper  v.  Butler  (U.  S.) 232,  284 

Harral  v.  Harral  (N.  J.)  .  60,  72,  94,  107,  108,  109,  117,  118,  150,  169,  177 
Harris  v.  Hardeman  (U.  S.) 190 

V.  Harris  (N.  C.) 204 

Harrisburg,  The  (U.  S.) 495 

Harrison  v.  Edwards  ( Vt.) 447,  513,  626 

V.  Harrison  (Ala.) 94,  95,  96,  173,  195,  198 

w.  Nixon  (U.  S.) 339,340,342,347,348 

V.  Sterry  (U.  S.) 243,  280,  309,  322,  324,  325,  515 

Hart  w.  Bostwick  (Fla.) 522 

V.  Lindsey  (N.  H.) 60,  62,  70,  115,  116,  118 

V.  Wills  (la.) 371,  388,  389,  434 

Harteau  v.  Harteau  (Mass.) 95,  96,  97,  101,  103,  170,  183.  184 

Hartford  v.  Champion  (Conn.) 115,  117,  121,  126 

Hartman  «;.  Aveline  (Ind.) 504 

V.  R.  R.  Co.  (Mo.) 356 

Harvard  College  v.  Gore  (Mass.) 79,  119,  122, 124,  126 

Harvey  o.  Merrill  (Mass.) 531 

V.  Richards  (U.  S.) 227, 230,  244,  253,  254,  255,  284,  285 

Harwell  «.  Sharp  (Ga. ) 277,516,521 

Hatch  V.  Hansom  (Mo.) 405 

Hausman  v.  Nye  (Ind.) 377 

Haviland  v.  Halstead  (N.  Y.) 166 

Hawkins  v.  Ragsdale  (Ky.) 203 

Hawley  v.  Bibb  (Ala.) 423 

V.  James  (N.  Y.) 29,  33,  87,  40 

Haymond  v.  Haymond  (Tex.) .      60 

Hazelr.  R.  R.  Co.  (la.) 406 

Healy  i;.  Reed  (Mass.)       138,  139, 140,  337 

Heath  v.  Heath  (La.) 99,  100 

Hedenberg  v.  Hedenberg  (Conn.) 233,  236 

Heebner  v.  Insurance  Co.  (Mass.) 399,  444,  464 

Hegeman  v.  Fox  (N.  Y.)       ...    72,  111,  113,  114,  118, 177, 199,  328,  331 

Heine  i'.  Insurance  Co.  (La.) 29,  175 

Helleman's  Will  (Eng.) 141 

Helton  V.  R.  R.  Co.  (Ala.) 475,  486,  487 

Hemmaker  V.  State  (Mo.) 502 

Henry  v.  Sansom  (Tex.) 430 

V.  Sargeant  (N.  H.) 499 

Hernandez,  Succession  of  (La.) 21,  25,  150,  157,  158,  177 

Herrick  v.  R.  R.  Co  (Minn.) 475,  480,  485,  487,  490,  493 

Herron  v.  Keran  (Ind.) 281 

Hervev  «.  Edens  (Tex.)   .     .     .     .     31,310,311,314,317,320,321,322,324 

V.  Locomotive  Works  (U.  S.) 8,  302,  307,  309 

Hewit,  In  re  (Eng.) 249 

Hiatt  V.  Griswold  (U.  S.)       433 

Hibernia  Nat.  Bank  v.  Lacombe  (N.  Y.)      15, 16,  17,  254,  315,  322,  325,  326, 

368,  .396,  397,  443,  449 

Hickox  r.  Elliott  (U.  S.) 389,  390,  404,  419,  420 

Hicks  r.  Brown  (N.  Y.) 396,397 

r.  Insurance  Co.  (U.  S.) 372,377,399,408 

V.  Pope  (La.) 178 

Hiestandr.  Kun8(Ind.) 74,80,88,109,141,142,143 

Higgins  V.  R.  R.  Co.  (Mass.)      , 25,  448 


XXXIV  TABLE   OF   CASES. 

[References  are  to  Pagea.] 

Hilbish  V.  Hattel  (Ind.) 38,  203 

Hill  V.  Bank  (N.  H.) 144 

V.  Chase  (Mass.) 371 

V.  Hill  (111.) 94,  101,  115,  117,  196,  197,  199 

V.  Spear  (N.  H.) 47,  294 

V.  Tucker  (U.  S.) 230,  231,  237 

Hilton  w.  Guyot  (U.  S.) 6,17,188 

Hinds  V.  Brazealle  (Misa.) 18 

Hoadley  r.  Transportation  Co.  (Mass.)       356,505,506,514 

Hobson  V.  Hale  (N.  Y.) 40 

Hoffman  v.  Carow  (N.  Y.) 484 

V.  Hoffman  (N.  Y.) 197,  198,  204 

Hohner  v.  Gratz  (U.  S.) 188 

Hollis  V.  Seminary  (N.  Y.) 12,  140 

Holmes  v.  Green  (Mass.) 118 

V.  Holmes  (Eng.) 348 

t'.  Manning  (Mass.) 434 

V.  Remsen  (20  Johns.  229) 243,  318 

V.  Remsen  (4  Johns.  Ch.  460) 280,321,322 

Holy oke  r.  Haskins  (Mass.) 85,88,90,106 

Homestead  Cases,  The  (Va.) 517 

Hood's  Estate  (Penn.) 71,  72,  117,  125 

Hood  i;.  Harrington  (Eng.) 235 

V.  Hood  (11  Allen,  196) 96,  97,  99,  103,  184,  190,  195,  196 

V.  Hood  (110  Mass.  463) 198 

V.  State  (Ind.) 3,  164,  198 

Hooker  v.  Olmstead  (Mass.) 228,  236 

Hope  w.  Brewer  (N.  Y.) 40,139,334,337 

Home  V.  Rouquette  (Eng.) 392,  393,  394,  39(3,  452 

Homthall  v.  Burwell  (N.  C.)    13,  14,  43,  44,  187,  271,  272,  300,  304,  307,  308. 

521 

Hosford  V.  Nichols  (N.  Y.) 432 

Hoskins  r.  Matthews  (Eng.) 113,114,118 

Houghtaling  r.  Ball  (Mo.) 413,531,532 

Howlandr.  R.  R.  Co.  (Mo.) 277,290 

Hoyt  V.  Sprague  (U.  S.) 259,  261 

V.  Thompson  (N.  Y.) 277,  279,  299,  306 

Hubbard  v.  Bank  (U.  S.)       392,413 

Hubbell  V.  Land  &  Imp.  Co.  (Tenn.) 372,  434,  437,  513 

Hugo,  The  (U.  S.) 365,  406 

Hull  V.  Blake  (Mass.) 447 

HuUett  V.  King  of  Spain  (Eng.) 509 

Humphreys  y.  Hopkins  (Cal.) 264,266 

Hunt  i;.  Hunt  (N.  Y.)  94,  95,  96.  97,  99,  101, 103,  104,  170,  183,  184.  195, 

196, 529 

r.  Jones  (R.  I.) 370,  413,  431 

V.  Perry  (Mass.) 281 

«.  Standart  (Ind.) 392,396,397,443,453,454 

Huntington  v.  Attrill  (U.  S.)      21,  22,  24,26, 26,  151,  157,  189,  476,  478,  480. 

485,  490.  492 

Huntley  v.  Merrill  (N.  Y.) 408 

Hurst  V.  Mut.  L.  Ass'n  (Md.) 409 

Huse  «;.  Hamblin  (la.) 462 

Hutchings  V.  Kimmell  (Mich.) 160,161,167,168 

Hyde  v.  Goodnow  (N.  Y.) 372,  398,  408 


TABLE  OF   CASES.  XXXV 

[References  axe  to  Pages.] 

Illinois  Cbntkal  R.  R.  Co.  v.  Ihlenberg  (U.  S.) 480,  487 

V.  Smith  (Miss.) 277,287,618,521 

In  re  BrcltungJ Wis.) 399,  400 

Capper's  Will  (la.) 528 

Da  Cunha  (Eng.) 141 

Dalpay  (Minn.) 16,  273,  294,  810,  312,  314 

Flukes  (Mo.) 621 

Gaines  (La.)       189 

Grove  (Eng.) 216 

Helleman's  Will  (Eng.) 141 

Hewit  (Eng.) 240 

Johnson  (la.) 82,  93 

Kimball  (N.  Y.) 204 

Mohr  (Ala.) 504 

Olson's  Will  (la.) 69,  71, 125 

Rice  (Mich.) 124,  128,  259 

Robert's  Will  (N.  Y.) 137,  334 

Steer  (Eng.) 74 

Ingraham  i;.  Geyer  (Mass.) 312,  315 

Insurance  Co.  v.  Assessors  (La.) 281 

V.  Brinkley  Co.  (Ark.) 871,  377,  398,  399,  408 

V.  Chambers  (N.  J.) 277,  288 

V.Clements  (U.S.) 39!* 

V.  Companhia  de  Moagens  (U.  S.) 461 

r.  Corbett  (111.) 288 

V.  Force  (N.  Y.) 187 

V.  Hardware  Co.  (Tex.) 188 

V.  Hettler  (Neb.) 277,  290 

V.  Nixon  (U.  S.) 898,  408 

V.  Portsmouth  (Mass.) 277 

r.  Robison  (U.  S.) 371,375,399 

V.  Russell  (U.  S.) 375 

V.  Sawyer  (Mass.) 408 

r.  Trimble  (U.S.) 398,409 

17.  Trust  Co.  (U.  S.) 409,  443 

V.  Wenar  (Tex.) 287 

Iowa,  The  (U.  S.) 406 

Irvine  v.  Barrett  (Penn.) 389 

Isham  V.  Gibbons  (N.  Y.) 114 

Ives  V.  McNicoU  (Ohio) 76,  221 

Ivey  V.  LoUand  (Miss.) 18,  362 

Jacks  v.  Nichols  (N.  Y.) 436 

Jackson  v.  Com.  (Ky.) 600 

r.  Green  (Ind.) 457 

v.  Jackson  (80  Md.  176) 167,168 

i;.  Jackson  (82  Md.  17) 10,152,153,160,161,167 

V.  Jackson  (1  Johns.  424) 198 

V.  Johnson  (Ga.) 233,  236 

V.  Mortgage  Co.  (Ga.) 377,  431 

Jacobs  V.  Credit  Lyonnais  (Eng.) 363,  442,  443 

Jacquette  v.  Huguiron  (U.  S.) 190 

James' Estate  (Cal.) 197 

James  v.  James  (Tex.)      ....         532 

Jenness  v.  Jenness  (Ind.) 94,  95,  101,  102,  103 

Jennings  v.  Jennings  (Ohio) 36,  341,  344 


XXXVl  TABLE  OP  CASES. 

[Eeferences  are  to  Pages.] 

Jennison  v.  Hapgood  (Mass.) 117, 121,  124,  281,  253 

Jessup  V.  Carnegie  (N.  Y.) 629 

Johns  V.  State  (Ind.) 498.  501 

Johnson,  In  re  (la.) 82,  93 

Johnson  v.  Hunt  (N.  Y.) 323 

V.  Jackson  (Ga.) 233,  2;i6 

V.  Powers  (U.  S.) 230,  231,  235,  237 

Johnston  v.  Gawtry  (Mo.) 38,  147,  247 

V.  R.  R.  Co.  (U.  S.) .  495,  622,  624 

Johnstone  v.  Beattie  (Eng.) 82,  114,  268,  259,  261 

Jones  V.  Jones  (Miss.) 133,  183,  196 

V.  Jones  (N.  Y.) 163,  191,  204,  512 

V.  Leonard  (la.) 504 

V.  Rice  (Ga.) 531 

Jopp  V.Wood  (Eng.) 62,68,122 

Jordon  v.  Thornton  (Ark.) 393,  610 

Joslyn  i;.  Miller  (Neb.) 434 

Judy  V.  Kelley  (111.) 235 

Juillard  v.  May  (111.) 81,  311,  313 

Kahl  v.  R.  R.  Co.  (Ala.) 478,  487 

Kanaga  v.  Taylor  (Ohio) 48,  44,  304,  307 

Kansas  City  R.  R.  Co.  v.  Cunningham  (Kan.) 518 

Kansas  Pac.  R.  R.  Co.  v.  Cutter  (Kan.) 241 

Kavanaugh  v.  Day  (R.  I.) 465 

Keegan  v.  Geraghty  (111.) 35,  86,  222 

Keith  V.  Keith  (Mo.) 29 

Keiwert  v.  Meyer  (Ind.) 371,  377,  384,  413,  428 

Kelley  v.  Kelley  (Mass.) 528,  530,  531,  532 

Kellogg  V.  Miller  (U.  S.)  .    .   • 373,  380,  390,  431,  432 

Kelly  V.  Garrett  (Ala.) 60 

Kelsey  v.  Green  (Conn.) 80,  81,  100,  259,  260 

Kennebrew  v.  Machine  Co.  (Ala.) 444,  532 

Kennedy  v.  Knight  (Wis.) 434 

w.  R.  R.  Co.  (U.  S.) 267 

Kennett  v.  Chambers  (U.  S.) 18 

Kentucky  v.  Bassford  (N.  Y.) 47,  423,  424,  428 

Kern  v.  Field  (Minn.) 199 

Kerr  v.  Dougherty  (N.  Y.) 10,  137,  139,  334 

V.  Kerr  (N.  Y.) 198 

V.  Moon  (U.  S.) 28,  33,  235,  333 

r.  Urie(Md.) 145,293 

Kershaw  v.  Kershaw  (Cal.) 200 

Kidd  V.  State  (Ala.) 502 

Kiefer  y.  R.  R.  Co.  (N.  Y.) 488  489 

Kilcrease  v.  Johnson  (Ga.) 433,  434,  436 

Kilgore  v.  Dempsey  (Ohio) 431,  434 

Kimball,  In  re  (N.  Y.) 204 

King  V.  Cross  (U.  S.) 289 

r.  Sarria  (N.  Y.) 375 

Kinnev,  Ex  parte  (U.  S.) 11,152,153,447,448 

Kinney  v.  Com.  (Va.) 18,  20, 133,  149,  162,  153,  163, 167,  411 

i;.  Crocker  (Wis.) 267 

Kinnier  v.  Kinnier  (N.  Y.) 184,  198 

Kirkland  v.  Lowe  (Miss.) 322,  324 

V.  Whately  (Mass.) 88,  90.  91 


TABLE   OF   CASES.  XXXVH 

[References  are  to  Pages.] 

Klinck  V.  Price  (W.  Va.) 31,  434 

Kline  v.  Kline  (la.) 80,  94,  97,  191,  201,  203,  207,  209 

Kling  V.  Fries  (Mich.) 377 

V.  Sejour  (La.) 467 

Knapp  V.  Knapp  (Mich.) 681 

Kneeland  v.  Enslev  (Tenn.) 38,  39,  169,  174,  177 

Knight  V.  R.  R.  Co.  (Penn.) 480 

Knights  Templar  Ass'n  v.  Greene  (U.  S.)        340,  398,  443,  460 

Knights  Templar  Indemnity  Co.  v.  Berry  (U.  S.) 372,  399,  408 

Knowlton  v.  Doherty  (Me.) 294 

V.  Knowlton  (III.)       199 

V.  R.  R.  Co.  (Ohio) 406 

Knox  V.  Jones  (N.  Y.) 29,  333 

Kohn's  Estate  (Penn.) 141 

Koshkonongr.  Burton  (U.  S.) 622 

Kraft  V.  Wickey  (Md.) 259,  261,  262 

Kritzer  v.  Woodson  (Mo.) 26 

Kuenzi  v.  Elvers  (La.)       396,  397,  582 

Kuhn  V.  Morrison  (U.  S.) 433 

Kyle  i;  Montgomery  (Ga.) 516 

Lact  v.  Palmer  (Va.)       501 

Lamar  v.  Micou  (112  U.  S.  452)        79,  80,  82,  83,  84,  85,  88,  89,  90,  133,  141, 

226,  254,  257,  258,  261,  262,  628 

V.  Micou  (114  U.  S.  214) 80,  82,  86,  88,  90,  93,  528 

V.  Scott  (S.  C.) 29,  38,  39,  174 

Lancashire  Insurance  Co.  v.  Corbett  (HI.) 288 

Lane  v.  Watson  (N.  J.) 434 

Lanesborough  v.  Berkshire  Co.  (Mass.) 283 

Langdon  o.  Doud  (Mass.) 59 

r.  R.  R.  Co.  (N.  Y.) 490 

Langworthy  v.  Little  (Mass.) 43,  44,  271,  304,  307 

Lanusse  v.  Barker  (U.  S.)  389,  391,  455 

Larendon,  Succession  of  (La.) 33 

Larquie  u.  Larquie  (La.) 60,99,118,177 

La  Sella  v.  Woolery  (Wash.) 38,  247,  518 

Law  r.  Mills  (Penn.) 310,316,317 

«.R.  R.  Co.  (U.  S.) 480,485,493 

Lawrence  v.  Bassett  (Mass.) 372,  388,  488 

V.  Kitteridge  (Conn.)       331 

17.  Smith  (N.  H.) 289,  290 

Leach  v.  Buckner  (W.  Va.) 238,  255 

V.  Greene  (Mass.)        510 

Lebel  i;.  Tucker  (Eng.) 392,394,449,450 

Le  Breton  y.  Miles  (N.  Y.) 109,180 

V.  Nouchet  (La.) 177,  179 

Lee  V.  Selleck  (N.  Y.)       394 

V.  State  (Ga.) 603 

Le  Forest  i;.  Tolman  (Mass.) 24,  479,  483,  486 

Lehman  v.  Feld  (U.  S.) 419 

Le  Messurier  w.  Le  Messurier  (Eng.) 178 

Lennig  v.  Ralston  (Penn.) 391 

Leonard  r.Nav.  Co.  (N.  Y.) 25,241,485,490,492,632 

V.  New  Bedford  (Mass.) 281 

Xierkin  v.  Wilson  (Mass.) ,     .     .     .     .    289 

Leroux  v.  Brown  (Eng.)        414,  415,  625 


XXXviii  TABLE   OF  CASES. 

[References  are  to  Pages.] 

Le  Rov  V.  Beard  (U.  S.)       506 

Levy  V.  Levy  (Penn.) 393,  510 

Lewi8,  Succession  of  (La.)        83,  84,  85 

Lewis «.  Adams  (Cal.) ....     236 

V.  Headley  (111.) 362,  378,  389,  Ui 

Lewisohn  v.  Nat.  etc.  Co.  (U.  S.)       406 

Limekiller  v.  R.  R.  Co.  (Kan.) 241,  494 

Lincoln  v.  Perry  (Mass.) 339,  340,  341,  342,  347,  349 

Lindsay  v.  Hill  (Me.)       362 

Lindsey  v.  State  (Ohio) 499,  501 

Lingen  v.  Lingen  (Ala.) 230 

Litowich  V.  Litowich  (Kan.) 198 

Livermore  v.  Jenckes  (U.  S.) 318,  326 

Liverpool  Steam  Co.  r.  Insurance  Co.  (U.S.)  363, 380, 381, 406, 527, 528, 529 
Lloyd  V.  Guibert  (Eng.) 363 

V.  Scott  (U.  S.) 430 

Lockwood  V.  Mitchell  (Ohio) 434 

Loker  v.  Gerald  (Mass.)        96,  99,  103,  195,  201,  203,  206 

LoUey's  Case  (Eng.) 170,  183 

London  Assurance  v.  Companhia  de  Moagens  (U.  S.) 461 

Long  V.  Girdwood  (Penn.)    ....  13,  31,  62,  271,  279,  310,  325,  326 

V.  Ryan  (Va.)       59 

Loring  «.  Thorndike  (Mass.) 36,167,216,629 

Loud  V.  Loud  (Mass.) 198 

Louisville  &  N.  R,  R.  Co.  v.  Williams  (Ala.)        ....   478,  482,  483 

Lovejoy  r.  Albee  (Me.) 287 

Loving  •».  Pairo  (la.) 311,317 

Lower  r.  Segal  (N.  J.) 494 

Lowryi).  Bradley  (S.  C.)     .     .     .     .64,67,70,115,116,117,125,337 

Ludlow  V.  Van  Rensselaer  (N.  Y.) 412 

Ludwig  V.  Steward  (Mich.) 622 

Lyman  v.  Campbell  (Mo.) 523 

t;.  R.  R.  Co.  (U.  S.) 480,  489 

Lynch  v.  Postlethwaite  (La.) 513 

Lyon  V.  Callopy  (I».) 516,  619 

V.  Lyon  (Mass.) 99,  183,  184 

Lyons  v.  R.  R.  Co.  (Tex.) 513 

Macdonald  v.  Macdonald  (Sc.) 180 

Machado  v.  Fontes  (Eng.) 476,  479,  481,  486,  493,  532 

Mack  V.  People  (N.  Y.) 502 

Mackey  v.  Coxe  (U.  S.) 225,  242 

r.  Petti  John  (Kan.) 10,271,304 

Maddoxr.  State  (Ind.) 82 

Madrazo  r.  Willes  (Eng.) 17 

Magowan  v.  Magowan  (N.  J.) 195,  196,  197,  198,  199,  206 

Maguire  v.  Maguire  (Ky.) 94,  96,  167,  173,  195,  198 

Maillard  v.  Nihoul  (La.)        296 

Majestic,  The  (U.  S.) 406,  407 

Male  V.  Roberts  (Eng.) 148 

Malpica  v.  McKeown  (La.) 378 

Manley  v.  People  (N.  Y.) 497,  498 

Manufacturing  Co.  v.  Lang  (Mo.) .     .       277,  290 

Marden  v.  Insurance  Co.  (la.) 399 

Marheineke  v.  Grothaus  (Mo.) 86 

Marina,  The  (U.  S.) 302,  303 


TABLE   OP   CASES.  XXXIX 

[References  are  to  Pages.] 

Marshall  v.  Marshall  (N.  Y.) 159 

V.  Sherman  (N.  Y.) 13,  21,  26,  27 

Martin  r.  Hill  (N.  Y.)       44,300,304,807,308,484 

V.  Johnson  (Ga.) 390,433,434,436 

Marvin  Safe  Co.  v.  Norton  (N.  J.) 271,  293,  301,  302 

Mashassuck  Felt  Mills  v.  Blanding  (R.  I.) 277 

Mason  r.  Beebee  (U.  S.) 43,387,618,619,621 

V.  Dousay  (111.) 443 

V.  Homer  (Mass.)        95,  169,  177 

Masonic  Ass'n  v.  Jones  (Penn.) 461 

Massey  v.  Womble  (Miss.) 517 

Matthews  y.  Lloyd  (Ky.) 11,13,15,299 

v.  Murchison  (U.  S.) 146,411 

v.  Paine  (Ark.) 433 

May  .'.  Bank  (111.)    .     .    .   10, 13,  14,  15,  31,  310,  311,  313,  317.  324,  325,  326 

V.  Breed  (Mass.) 465 

i;.  Smith  (N.  B.) 485,  486 

V.  Wannemacher  (Mass.)  16,  46,  272,279,  310,  312,  314, 318,  320, 324, 326 

Maynard  v.  Hall  (Wis.) 434 

Mayo  V.  Equitable,  etc.  Society  (Miss.)     .     114,  115,  118,  225,  285,  328,  329 

Maxwell  v.  Hyslop  (Eng.) 252,  341,  346 

V.  Maxwell  (Eng.) 340,  341,  346 

McAllister  v.  Smith  (111.) 24,  513,  614 

McBee  v.  Bank  (Ind.  Ter.) 290 

McCallum  u.  Smith  (Tenn.) 39 

McCarthy  v.  De  Caix  (Eng.) 170 

V.  n.  R.  Co.  (Kan.) 482,  483,  492 

McCartney  «.  Osburn  (111.) 36,37,341 

McCleesy.  Burt  (Mass,) 506,507 

McClurev.  Campbell  (Wis.) 322 

McCormick  y.  SuUivant  (U.  S.) .      28 

McCune  v.  House  (Ohio) 334 

McDonald  v.  Mallory  (N.  Y.) 481 

McElfatrick  u.  Hicks  (Penn.) 430 

McElmoyle  v.  Cohen  (U.  S.) 188,  189,  190,  243 

McGill  V.  Deming  (Ohio) 38,  191,  195 

McGoon  V.  Scales  ( U.  S.) 33 

Mcllvaine  V.  Legare  (La.) 296 

Mclntyre  f.  Parks  (Mass.) 47,294,384,428 

AIcKee  e.  Jones  (Miss.) 21,  403 

McKeen  v.  Northampton  Co.  (Penn.) 282 

McKenzie  v.  State  (Tex.) 502 

McLean  v.  Hardin  (N.  C.) 178,  179 

r.  Meek  (U.  S.) 225,230,237,254 

McMaster  v.  Insurance  Co.  (la.) 376 

McNamara  v.  Dwyer  (N.  Y.) 233,  235,  2-36,  238,  255 

McNeely,  Ex  parte  (W.  Va.) 500 

McPherson  v.  Housel  (N.  J.) 98,  100 

McShane  v.  McShane  (N.  J.) 199 

Mears  v.  Sinclair  (W.  Va.) 75,  79,  80,  83,  84,  88,  89 

Medway  v.  Needham  (Mass.) 19,  20,  151,  153,  161 

Melan  w.  Fitz-James  (Eng.) 511,  512 

Melendy  »>.  Barbour  (Va.) 267 

Melvin  v.  Martin  (R.  I.) 36,  133,  222 

Memphis,  etc.  R.  R.  Co.  v.  Alabama  (U.  S.) 130 

Merchants'  Bank  v.  Griswold  (N.  Y.) 377,  391,  392,  434 


Xl  TABLE  OP  CASES. 

[References  are  to  Pages.] 

Merchants'  Bank  v.  Spalding  (12  Barb.  302) 17,  18 

i;.  Spalding  (9  N.  Y.  63) 294,  419 

Meroney  v.  B.  &  L.  Ass'n  (N.  C.) 434 

Merrill  v.  Insurance  Co.  (Mass.)     .  229,  230,  232,  233,  285,  237,  253.  255,  :^85 

V.  Preston  (Mass.) 339,  340,  342,  348 

Meuer  r.  R.  R.  Co.  (S.  D.) 406 

Mexican  Nat.  R.  R.  Co.  i;.  Jackson  (Tex.) 480,488,489 

Mever  v.  Richards  (U.  S.) 296,  444 

Middleborough  v.  Rochester  (Mass.) 105 

Midland  Co.  v.  Broat  (Minn.) 21,  525,  526 

Miles  V.  Oden  (La.)       304,  305 

Miller,  Estate  of  (Penn.) 243 

Miller  v.  Campbell  (N.  Y.) 133,  145,  400 

V.  Miller  (N.  Y.) 33,36,48,46,133,212,216 

V.  Tiffany  (U.  S  ) 430 

V.  Wilson  (111.) 413,  417.  418,  626 

Milliken  v.  Pratt  (Mass.) 11,  146,  147, 148,  362,  371,  373,  376 

Mills  V.  HopkinsviUe  (Ky.) 64,  88,  90,  91 

V.  Thornton  (111.) 281 

Milne  v.  Moreton  (Penn.)      ...      11,  16,  272,  279,  280,  310,  321,  322,  326 

MineralPoint  R.  R.  Co.  v.  Barron  (111.) 516 

Minor  v.  Cardwell  (Mo.) 39 

Missouri  Pac.  R.  R.  Co.  v.  Lewis  (Neb.) 241 

V.  Sharritt  (Kan.) 287,  290,  518,  521,  532 

Mitchell  I'.  Harmony  (U.  S.) 476 

V.  United  States  (U.  S.)      ....      62,  70,  72, 109,  116,  121,  122,  126 

Mohr,  In  re  (Ala.) 504 

Mohr  V.  Miesen  (Minn.) 531 

Monroe  v.  Douglas  (N.  Y.) 532 

Montalvan  v.  Clover  (N.  Y.) 238 

Montgomery  v.  Millikin  (Miss.) 137,  138,  337 

Mooney  v.  Buford  (U.  S.) 288 

V.  Manufacturing  Co.  (U.  S.) 290 

V.  R.  R.  Co.  (la.) 290,  519 

Moore  v.  Church  (la.) 16,  31,  311,  315,  317 

V.  Hegeman  (N.  Y.) 151,  157,  159 

r.  Jordan  (Kan.) 236 

V.  Mayor  (N.  Y.) 174 

r.  Title  &  Trust  Co.  (Md.) 8,31,311 

V.  Willett  (N.  Y.) 273,  310,  312 

Moorehouse  ».  Lord  (Eng.) 72,114 

Morawetz  v.  Sun  Insurance  Office  (Wis.) 288 

Morey  V.  Morey  (Minn.) 197,203 

Morgan  v.  Morgan  (Tex.) 196 

i;.  NeviUe  (Penn.) 290,  516,  519,  520 

Morrell  v.  Dickey  (N.  Y.) 231,  232,  261 

Morris  v.  Hockaday  (N.  C.) 379,  4.^.1 

V.  R.  R.  Co.  (la.) 26,  241,  485,  492 

V.  Wibaux  (111.) 465 

Mortgage  Co.  v.  JeflFerson  (Miss.) 18,  879,  380,  431 

o.  McLaughlin  (Ga.) 363,  390,  432,  434 

V.  Sewell  (Ala.) 363,  390,  431,  434 

V.  Vaden  (U.  S.) 389,  431 

Moreton  v.  Hull  (Tex.) 621 

Mott  V.  Rowland  (Mich.) 431,  437 

Moultrie  v.  Hunt  (N.  Y.) 133, 141,  333,  347 


TABLE  OP  CASES.  xll 

[References  are  to  Pages.] 

Mowryt;.  Latham  (R.  I.) 73,107,108,109,122,124 

Mullen  V.  Morris  (Penn.)       455 

i;.  Reed  (Conn.) 37,  340,  461 

Mumford  v.  Canty  (111.) 307,  508 

Munn  V.  Illinois  (U.  S.) 522 

Munos  ».  R.  R.  Co.  (U.  S.) 495,  524 

Munro  v.  Munro  (Eng.) 73,  76,  216,  217 

V.  Saunders  (Eng.) 216 

Munroe  v.  Douglas  (Eng.) 119 

Murphy  v.  Collins  (Mass.) 403,  404,  582 

V.  Murphy  (La.) 178 

Musson  V.  Lake  (U.  S.) 396,453 

Mutual  Ben.  Ins.  Co.  v.  Robison  (U.  S.) 371,  376,  399 

Nashville  v.  Thomas  (Tenn.) 282 

Nat  V.  Coons  (Mo.) 334 

National,  etc.  Ass'n  v.  Ash  worth  (Va.)       432 

National  Bank  v.  Indiana  Banking  Co.  (111.) 397,  445 

National  Insurance  Co.  r.  Chambers  (N.J.) 277,288,290 

National  Union  v.  Marlow  (U.  S.) 408 

Needham  v.  R.  R.  Co.  (Vt.) 482,  483 

NefE  V.  Beauchamp  (la.) 198,  199 

Neil  V.  Bank  (Ohio) 466 

Nelson  v.  R.  R.  Co.  (Va.) 26,  241,  476,  485,  493 

Neufelder  v.  Insurance  Co.  (Wash.) 277,  290 

Newcomer  v.  Orem  (Md.) 39,  40,  174,  177 

Newell  V.  Haden  (la.) 516 

New  England  Mortgage  Co.  v.  McLaughlin  (Ga.)  ...    363,  390,  432,  434 

.;.  Vaden  (U.  S.) 389,  431 

Newlandv.  Reilly  (Mich.) 289 

Newman  v.  Cannon  (La.) 296,  296,  309,  377 

New  Orleans  v.  Insurance  Co.  (La.) 283 

New  York  L.  Ins.  Co.  v.  Aitkin  (N.  Y.) 507 

V.  Russell  (U.  S.) 375 

Niblett  V.  Scott  (La.) 188 

Niboyet  v.  Niboyet  (Eng.) 131 

Nichols  V.  Bank  (W.  Va.) 392 

V.  Mase  (N.  Y.) 304,  307 

r.  Porter  (W.  Va.) 445,454 

Nickels  v.  Association  (Va.)       419,  431,  432 

Njus  V.  R.  R.  Co.  (Minn.) 487 

Noble  V.  OU  Co.  (Penn.) 187 

Nonce  r.  R.  R.  Co.  (U.  S.)     .    .    .     .' 495 

Norman  v.  Norman  (Cal.) 168 

Norris  v.  Atkinson  (N.  H.) 472 

V.  Norris  (N.  H.) 170,  183,  184,  196 

North  Pacific  Lumber  Co.  v.  Lang  (Or.) 480 

Northern  Pac.  R.  R.  Co.  v.  Babcock  (U.  S.) 487 

Northwestern  Association  r.  Jones  (Penn.) 460 

Noyes  v.  Wyckoff  (N.  Y.) 467 

Nugent  V.  Vetzera  (Eng.) 259 

Oaklet  v.  Bennett  (U.  S.) 321 

Obear  v.  Bank  (Ga.) 522 

Ochiltree  v.  Contracting  Co.  (Mo.) 26 

Ockerman  v.  Cross  (N.  Y.) 311,  316,  317 


Xlii  TABLE  OF   CASES. 

[References  are  to  Pages.] 

O'Dear.  0'Dea(N.  Y.) 96,99,164,191,204 

O'Dell  V.  Gray  (Mo.) 443,  447 

Odom  r.  Mortgage  Co.  (Ga.) 390,431,432 

Ogden  V.  Saunders  (U.  S.) 471 

Oliver  V.  Washington  (Mass.) 282 

Olivier  v.  Townes  (La.) 274,  298 

Olmstead  v.  Mortgage  Co.  (Neb.) 434 

Olson's  Will  (la.) 69,  71,  125 

Opinion  of  Judges  (Mass.) 60 

Oranmore,  The  (U.  S.) 408 

O'Regan  v.  Cunard  S.  S.  Co.  (Mass.) 406 

O'Reilly  V.  R.  R.  Co.  (R.  L) 480,  485,  489,  491,  492 

Orr  V.  Armory  (Mass.) 610 

Osborn  i».  Nicholson  (U.  S.) 21,47 

Oseanvonr.  ArmsCo.  (U.  S.) 18,48,424 

Osgood  r.  Maguire  (N.  Y.) 265,277 

O'Shields  v.  R.  R.  Co.  (Ga.) 524 

Otis  V.  Boston  (Mass  ) 64,  65,  67,  69,  79,  118,  119,  129 

V.  Gregory  (Ind.) 29,  32,  83 

Overseers  of  Alexandria  r.  Bethlehem  (N.  J.) 106 

Overton  v.  Bolton  (Tenn.) 434 

Owen  V.  Miller  (Ohio) 277 

Packer  v.  Thompson  (Neb.) 190 

Packwood,  Succession  of  (La.) 178,232,349,351 

Paine  !.-.  Lester  (Conn.) 16,272,279,320,321,322,324,325 

Parkr.  Kelley  AxeCo.  (U.  S.) 376 

V.  Manufacturing  Co.  (U.  S.)       411 

V.  Rose  Bank  (Ind.) 396 

Parsons  v.  Lyman  (N.  Y.) 230,  243,  253,  254,  255,  256,  328,  340 

V.  Trask  (Mass.  ) 378 

Patterson  v.  Gaines  (U.  S.) 167 

Pattison  v.  Mills  (Eng.) 376 

Pawling  V.  Bird  (N.  Y.) 198,  209 

Pealer.  Phipps  (U.  S.) 267 

Pearce  v.  State  (Tenn.) 62 

Pearl  p.  Hansbrough  (Tenn.) 146 

Pearsall  v.  Dwight  (Mass.) 510 

Peck  u.  Mayo  (Vt.) 396,443,455,457,515 

Pedan  v.  Robb  (Ohio) 91 

Peet  V.  Hatcher  (Ala.) 384,  422,  531,  632 

Penfieldy.  Tower  (N.D.) 30,33,37,40,333,335 

Peninsula,  etc.  Co.  v.  Shand  (Eng.) 363 

Fenn  Mut.  L.  Ins.  Co.  y.  TrustCo.  (U.  S.) 409,443 

Pennegar  v.  State  (Tenn.)     10,  11,  12,  18,  20,  25, 152,  153,  154,  159,  160,  167 
Pennoyer  v.  Neff  (U.  S.)  .    .  8,  13,  184,  187,  188,  196,  197,  201,  207,  208,  286 

People  r.  Adams  (N.  Y.) 499 

V.  Baker  (N.  Y.) 191,  204,  259 

V.  Burke  (N.  Y.) 502 

V.  Commissioners  (N.  Y.) 281 

V.  Dawell  (Mich.) 133, 164,  184,  196, 197,  198 

V.  Hovey  (N.  Y.) 1.50 

V.  Staples  (Cal.) 502 

People's  Bank  v.  Norwalk  (Conn.) 467 

Perkins  v.  Guy  (Miss.) 523 

Ferry  i\  Insurance  Co.  (N.  H.) 399.  409 


TABLE  OP  CASES.  xliii 


[References  are  to  Pages.] 


Perry  r.  Iron  Co.  (R.  I.) 373,  413 

V.  R.  R.  Co.  (Kan.) 241 

Petersen  v.  Chemical  Bank  (N.  Y.)  3,  8,  227,  231,232,  233,  234,  236,  266,  272, 

284,  285,  328 

Petit,  Succession  of  (La.) 328,  331 

Phillips  V.  Eyre  (Eng.) 486 

r.  Gregg  (Penn.) 43,  167,  168,  529,  530 

Phinney  i>.  Insurance  Co.  (U.  S.) 381,409,411,413 

Phippsy.  Harding  (U.  S.) 372,-388,448 

Picquet,  Ex  parte  (Mass.) 231,236 

Pierce  i;.  Indseth  (U.  S.) 396,  443,  448,  452 

Pioneer  Sav.  &  L.  Co.  i>.  Cannon  (Tenn.) 432 

Plestoro  V.  Abraham  (N.  Y.) 324,  326 

Plummer  v.  Hatton  (Minn.) 195 

Poison  «.  Stewart  (Mass.) 29,32,144,175,352,416,417,459 

Pomeroy  v.  Ains worth  (N.  Y.) 434 

V.  Rand  (111.) 277 

Pond  V.  Cooke  (Conn.) 44,  45,  264,  265,  266 

Pope  V.  Nickerson  (U.  S.) 362,  374,  380,  381,  401,  411,  419 

Poppleton  V.  Yamhill  Co.  (Or.) 283 

Porter  r.  Price  (U.  S.) 382,391 

Post  i;.  Bank  (111.) 30 

V.  R.  R.  Co.  (Mass.) 26,  27 

Potinger  v.  Wightman  (Eng.) 82.  83 

Powell  V.  State  (Wis.) 502 

V.  Stratton  (Va.) 255 

Powers  f.  Lynch  (Mass.) 60,396,398,453 

Pratt  V.  Adams  (N.  Y.) 294,  428,  433,  434 

Preston  v.  Melville  (Eng.) 242 

Price  V.  Campbell  (Va.) 480 

V.  Dewhurst  (Eng.) 133,  349,  350 

V.  Price  (Penn.)  62,  65,  69,  70,  72,  73,  74,  79,  109,  115,  117,  121,  124,  125 
Pritchard  v.  Norton  (U.  S.)        378,  380,  383,  389,  390,  411,  414,  425,  426,  466, 

605,  506,  513,  514,  515,  522,  526 

Proctor  V.  Clark  (Mass.) 341,  342 

Prosser  i-.  Warner  (Vt.) 133,  164,  170,  173,  183,  184,  191,  207 

Pry se  i>.  Association  (Ky.) 434 

Public  Parks  Amusement  Co.  v.  Carriage  Co.  (Ark.)  ....  301,  302,  303 

Pugh  i>.  Cameron  (W.  Va.) 374,377,433 

PuUen  V.  Hillman  (Me.) 471,  472 

Pullman  Car  Co.  v.  Lawrence  (Miss.) 476,  488,  499 

Putnam  v.  Johnson  (Mass.) 65 

0.  Putnam  (Mass.) 19,25,151,159 

Railroad  Co.  v.  Alabama  (U.  S.) 130 

V.  Babcock  (U.  S.) .487 

V.  Baker  (Kan.) 277 

V.  Barnhill  (Tenn.) 130 

f.  Barron  (111.) 516 

r.  Betts  (Colo.) 479,  532 

V.  Brown  (Ark.) 476 

D.  Carroll  (Ala.) 407,482,487 

V.  Churaley  (Ala.) 287 

V.  Collector  (U.  S.) 282 

'  r.  Cotton  Mills  (Ga.) 406,407 

».  Cox  (U.  S.) 26,  492 


xliv  TABLE  OF   CASES. 

[References  are  to  Pages.] 

Railroad  Co.  v.  Crane  (Dl.) 296 

V.  Cunniagham  (Kan.) 518 

V.  Cutler  (Kan.) 241 

V.  Dougan  (111.) 516,  519 

V.  Doyle  (Miss.) 482 

V.  Ferry  Co.  (U.  S.) 527 

i;.  Glenn  (Md.) 130,  318 

V.  Ihlenberg  (U.  S.) 480,  487 

V.  Jackson  (Tex.) 480,  488,  489 

».  Johnson  (U.  S.) 624 

V.  Kennedy  (Ala.) 277,  519,  620 

V.  Koontz  (U.  S.) 130 

r.  Lewis  (Neb.) 241 

V.  Lewis  (Tenn.) 400,  486 

V.  Maggard  (Colo.) 287,  616 

V.  McCormick  (Tex.) 480,  485,  492,  493 

r.  McMullen  (Ind.) 482,485,492 

V.  Moore  (Neb.) 520 

V.  Nash  (Ala.) 287,  288 

V.  Packet  Co.  (111.) 44,  45,  264,  266,  266 

V.  Sharritt  (Kan.) 287,290,518,521,532 

V.  Smith  (Kan.) 267 

V.  Smith  (Miss.) 277,  281,  518,  521 

V.  Sturm  (U.  S.) 289,  290,  521 

V.  Thompson  (Kan.) 290,  516 

V.  Whitlow  (Ky.) 486 

V.  Williams  (Ala,) 478,  482,  483 

Ramsay  v.  Stevenson  (La.) 314,  816,  318 

Rand  i;.  Hubbard  (Mass.) 232 

Rankin  v.  Goddard  (Me.) 188 

Rathbone  v.  Coe  (Dak.) 524 

Reddick  v.  Jones  (N.  C.) 394 

Redmond  i-.  Rutherford  (N.  C.) 283 

Reed  v.  Reed  (Mich.) Ill,  112,  146, 197,  198 

V.  Tel.  Co.  (Mo.) 407 

Reid,  Goods  of  (Eng.) 351 

Reimer  v.  Manufacturing  Co.  (U.  S.) 277,  288 

Reliance  Insurance  Co.  v.  Sawyer  (Mass.) 408 

Renaud  v.  Abbott  (U.  S.)', 529 

Renierr.  Hurlbut  (Wis.) 288 

Reynolds  V.  Adden  (U.  S.) 267,325 

V.  Stockton  (U.  S.) 190,  228,  229,  236,  263,  266,  274 

Rhawn  v.  Peters  (111.) .326 

Rice,  In  re  (Mich.) 124,  128,  269 

Rice  r.  Courtis  (Vt.) 318 

V.  Harbeson  (N.  Y.) 29,  244,  249,  260,  346 

V.  Moore  ( Kan.) 622 

Richards  V.  Dutch  (Mass.) 231,236,256 

Richardson  v.  De  Giverville  (Mo.) 29,  36,  38,  175,  341 

V.  Leavitt  (La.) 314 

V.  R.  R.  Co.  (Mass.) 25,  241,  492 

f.  Rowland  (Conn.) 420,  422 

V.  Shelby  (Okl.) 44,  304,  307 

Richmond  v.  R.  R.  Co.  (Va.) 608 

Riley  v.  Burroughs  (Neb.) 467,  458 

Ringgold  V.  Barley  (Md.)      115, 118 


TABLE  OP  OASES.  xlv 

[References  are  to  Pages.] 

Rio  Grande,  The  (U.  S.) 18T 

Ritchie  v.  McMullen  (U.  S.) 188 

Roberts,  Will  of  (N.  Y.) 187,  334 

Roberts  v.  Appleton  (Vt.) 72 

V.  Mc'Neely  (N.  C.) 4ci3 

Robinson  v.  Bland  (Eng.) 363,  384,  428 

V.  Nav.  Co.  (U.  S.) 481 

i;.  Queen  (Tenn.) 5,  13,  14,  49,  145,  146,  147,  443,  509,  510 

Rockwell  V.  Bradshavr  (Conn.) 228,  229,  256,  274,  340,  344 

Rodgers  u.  Rodgers  (Kaa.) 29,30,107,108,109,203,207,209 

Rogers,  Ex  parte  (Tex.) 501 

Rogers  v.  McLean  (N.  Y.) 259,  261,  262 

V.  State  (Tex.) 501 

Rose  V.  Bank  (Ind.) 394,  443,  447,  454 

Rosenheim  v.  Morrow  (Fla.) 471 

Ross  V.  Ross  (103  Mass.  576) 118 

V.  Ross  (129  Mass.  243)  28,  29,  33,  34,  35,  36,  38,  46,  57,  82,  92,  131,  133, 
134,  136,  146,  150,  151,  160,  161,  212,  217,  222,  329,  333 

Roth  V.  Roth  (111.) 8,  60,  150, 170,  191 

Roundtree  v.  Baker  (111.) 21,  47,  424,  428,  429 

Rouquette  v.  Overmann  (Eng.) 397,  462 

Routh  V.  Routh  (La.) 177 

Rudiger  v.  R.  R.  Co.  (Wis.) 482,  483 

Ruding  V.  Smith  (Eng.) 169 

Ruggles  V.  Kisler  (N.  Y.)       526 

Ruhe  V.  Buck  (Mo.) 605,  506,  507,  508,  510 

Ruse  V.  Insurance  Co.  (N.  Y.) 409 

Russell  V.  Hooker  (Conn.) 137,  233,  254,  272 

V.  R.  R.  Co.  (Cal.) 26,  27 

Safe  Co.  v.  Norton  (N.  J.) 271,  293,  301,  302 

Sanders  v.  Gatchell  (Me.) 60 

Sandidge  v.  Hunt  (La.) 531,  632 

Sands  v.  Smith  (Neb.) 433 

Sapphire,  The  (U.  S) 509 

Satterthwaite  v.  Doughty  (N.  C.) 411,  412 

Saul  V.  His  Creditors  (La.) 11,  12,  13,  146,  148 

Savings  Bank  v.  National  Bank  (U.  S.) 280,  297 

Scheflferling  v.  HuflEman  (Ohio) 180 

Schluter  v.  Bank  (N.  Y.) 47,  141,  142 

Schneller  v.  Vance  (La.) 262 

School  Directors  v.  James  (Penn.)      .    .    64,  74,  80,  83,  84,  85,  88,  89,  90,  91 

Schuler  v.  Israel  (U.  S.) 310,  314 

Scofield  V.  Day  (N.  Y.) 456 

Scotland,  The  (U.  S.) 481 

Scotland  Co.  v.  Hill  (U.  S.) 465,  466 

Scott  V.  Key  (La.) 219,  221 

V.  Perlee  (Ohio) 380,  431,  437 

Scoville  V.  Canfield  (N.  Y.) 24,  280,  297,  306 

Scrimshire  V.  Scrimshire  (Eng.) 167 

Scudder  v.  Bank  (U.  S.)    362,  368,  377,  391,  392,  411,  413,  414,  419,  448,  454, 

465,  514 

Sea  Grove,  etc.  Ass'n  v.  Stockton  (Penn.) 624 

Seamans  v.  Knapp  Co.  (Wis.) 368,  398,  408 

Searight  v.  Calbraith  (U.  S  ) 466 

Seiter  r.  Straub  (N.  Y.) 90 


xlvi  TABLE  OF  GASBS. 

[References  are  to  Pages.] 

Selectmen  of  Boston  v.  Boylston  (Mass.) 290 

Senac's  Will  (La.) 349 

Sevier  v.  Douglass  (La.) 334 

Sewall  V.  Sewall  (Mass.) 197,  198 

V.  Wilmer  (Mass.) 340,  352,  350,  354 

Seward  v.  Rising  Sun  (Ind.) 282 

Shannon  v.  Shannon  (Mass.) 198 

y.  White  (Mass)         230,328 

Sharper.  Crispin  (Eng.) 73,74,80,82,83,106,129,328,330 

Shattuck  V.  Chandler  (Kan.) 532 

Shaw  V.  Gould  (Eng.) 149,  170,  21t> 

V.  Shaw  (Mass.)      .     .  67,  70,  71,  96,  99,  116,  118,  119,  121,  124,  125,  196 

Sheddon  v.  Patrick  (Eng.) 216 

Sheldon?;.  Haxtun  (N.  Y.) 372,373,389,433,434,436,437 

V.  Hice  (Mich.)       231,  232,  236 

r.  Wlieeler  (U.  S.) 40,314 

Shelton  y.  Tiffin  (U.  S.) 62,122 

Siiepherd  v.  Cassidy   (Tex.) 64,  70 

Shields  V.  Coleman  (U.  S.) 265 

Shoe  &  Leather  Bank  v.  Wood  (Mass.) 371,  443 

Short  V.  Galway  (Ky.)       246 

Shreck  v.  Shreck  (Tex.) 94,  99,  169,  183,  184,  196 

Shuenfeldt  v.  Junkermann  (U.  S.) 377 

Shultz  V.  Pulver  (3  Pai.  Ch.  182) 229,  328 

r.  Pulver  (11  Wend.  361) 234,328 

Sickles  V.  New  Orleans  (U.  S.) 137,  139,  272,  328,  334,  340 

Sill  V.  Worswick  (Eng.) 270 

Silverman  v.  Lessor  (Me.) ....    472 

Simmons  v.  Commonwealth  (Penn.) 503 

Simonin  v.  Mallac  (Eng.) 167 

Simpson  r.  State  (Ga.) 482,600,601,502 

V.  State  (Tenn.) 503 

Sims  V.  Sims  (N.  Y.) 21,  24 

Singer  Manufacturing  Co.  v.  Fleming  (Neb.) 187,  618,  520 

Skinner  v.  Tinker  (N.  Y.) 412 

Skottowe  V.  Young  (Eng.) 35,  133 

Slack  V.  Perrine  (U.  S.) 188 

Slaughter  v.  Garland  (Miss.) 343,  344,  345 

Slocum  V.  Pomery  (U.  S.) 463 

Smith,  Ex  parte  (U.  S.) 504 

Smith  V.  Derr  (Penn.) 33,  35,  216 

V.  Eton  (Me.) 287,  324 

V.  Kelly  (Miss.)  36,  212,  213,  216,  217 

V.  McAtee  (Md.) 179 

V.  Mead  (Conn.) 389 

V.  Parsons  (Minn.) 418,  431 

V.  People  (III.) 118 

V.  Smith  (Neb.) 94,  95,  96,  198 

r.  Smith  (La.) 96,  98,  99,  101,  177,  201,  203,  206 

r.  Smith  (Mass.) 134,  198 

V.  Smith  (Va.) .305 

V.  Taber  (Tex.) 277 

V.  Union  Bank  (U.  S.)     .    .    .    .  10,  49,  226,  227,  230,  235,  243,  257,  272 

Smythe  i».  Allen  (Miss.) 504 

Sneed  v.  Ewing  (Ky.) 29,  39,  328,  349,  357 

Sohier  r.  Burr  (Mass.) 887 


TABLE   OF    CASES.  xlvii 

[References  are  to  Pages.] 

SomerTillet;.  Soraerville  (Eng.) 69,70,71,72,74,79,328 

Sondheim  v.  Gilbert  (Ind.) 384,  428 

Sorrey  v.  Bright  (N.  C.) 337 

Sottomayor  v.  DeBarros  (Eng.) 149,  160,  154 

Soutli  African  Breweries  v.  King  (Eng.) 421 

Southern  B.  etc.  Ass'n  v.  Harris  (Ky.) 434 

Southern  Ins.  Co.  v.  Hardware  Co.  (Tex.) 188 

Southern  Pacific  Co.  y.  Graham  (Tex.)       476,484 

Spearman  t>.  Ward  (Penn.) 38,247,508 

Speed  r.  May  (Penn.) 226,272,278,280,310,311,312,318,325 

Stacy  i;.  Tliraslier  (U.  S.) 228,230,237,274 

Staigg  V.  Atkinson  (Mass.)    ....      29,  36,  37,  38,  251,  252,  341.  344,  348 

Stanford  v.  Pruet  (Ga.) 394 

Staples  V.  Nott  (N.  Y.) 389,  434,  43b 

Starbuck  v.  Murray  (N.  Y.) 197 

State  V.  Barrow  (Tex.) 177,  178 

V.  Bowen  (Kan.) 600 

V.  Brown  (N.  C.) 603 

I'.  Carl  (Ark.) 296,  373 

V.  Carter  (N.  J.) 600 

V.  Chapin  (Ark.) 499,  601 

V.  Foster  (La.) 500 

V.  Gessert  (Minn.) 600 

V.  Grady  (Conn.) 601 

V.  Hall  (N.  C.) 447,  498,  600,  604 

V.  Kelly  (Me.) 500 

r.  Kennedy  (N.  C.)     ...     11,  18,  20,  183,  149,  162,  153,  160,  163,  167 

V.  Mitchell  (N.  0.) 497,  498 

V.  Moore  (N.  H.) 601 

V.  Newman  (Neb.) 603 

v.  0'Neil(Vt.) 271,295,296,373 

o.  Palmer  (N.  H.) 117 

V.  Ross  (N.  C.) 10,  46,  111,  149,  160,  164,  160,  161 

V.  SchaefEer  (Mo.) 602 

V.  Tutty  (U.  S.) 152,  163,  163,  167,  173 

V.  Weatherby  (Me.) 167,  169 

V.  Wyckoff  (N.  J.) 601 

State  Bank  v.  Richmond  (Va.) 281,  283 

State  Mut,  Ins.  Co.  v.  Brinkley  Co.  (Ark.)      .    .    .      371,  377,  398,  399,  408 

State  Tax  on  Foreign  Held  Bond  (U.  S.) 281,  282,  283 

Steams  v.  Burnham  (Me) 284 

Stebbins  V.  Leowolf  (Mass.) 404,448 

Steele  v.  Braddell  (Irish) 167 

Steer,  In  re  (Eng.) 74 

Steer,  Succession  of  (La.)      ...    62,  65,  72,  73,  79,  109,  115,  118,  128,  176 

Stephens  v.  James  (Eng.) 262 

Stepp  V.  Association  (S.  C.) 455 

Stevens  v.  Brown  (W.  Va.) 616,  619 

V.  Gay  lord  (Mass.) 229,  230,  253,  264,  285 

V.  Gregg  (Ky.) 443,  447,  626 

Stevenson  r.  Gray  (Ky.) 19,  20,  151,  162,  154 

Stewart  v.  Jessup  (Ind.) ...     502 

V.  R.  R.  Co.  (U.  S.)  26,  26,  27,  239,  240,  241,  242,  475,  477,  478,  479, 

480,  492,  493,  494 

'   r.  Stewart  (W.  Va.) 207 

Sticknej' ^'.  Jordan  (Me.) .         455 


rlviii  TABLE  OP  CASES. 

[References  are  to  Pages.] 

Still  V.  Woodville  (Miss.) 114 

Btirk  V.  Hamilton  (Me.) 441 

St.  Joseph,  etc.  R.  R.  Co.  v.  Smith  (Kan.) 267 

St.  Louis,  etc.  R.  R.  Co.  v.  Brown  (Ark.) 476 

i;.  McCormick  (Tex.) 480,485,492,493 

St.  Rureu.  Lind8felt(Wi8.) 21,24,199 

Stoddard  v.  Harrington  (Mass.) 472 

Stoneman  u.  R.  R.  Co.  (N.  y.) 608 

Stout  V.  State  (Md.) 600 

Strathmore  Peerage  (Eng.) 216 

Strawbridge  v.  Robinson  (111.) 879,  397,  441 

Street  v.  Insurance  Co.  (S.  C.) 187 

Strouther  v.  Commonwealth  (Va.) 602,  503 

Stubbs  V.  Colt  (U.  S.) 392,  394,  462 

Sturdivant  v.  Bank  (U.  S.) 433,  443 

Sturges  V.  Crowninshield  (U.  S.) 471 

Sturtevant  v.  Armsby  Co.  (N.  H.)      ....     13,  15,  46,  264,  322,  325,  326 

V.  Robinson  (Mass.) 277 

Succession  of  Cassidy  (La.)       30,  33,  37,  457,  468 

Succession  of  Hernandez  (U.) 21,26,150,167,168,177 

Succession  of  Larendon  (La.) 33 

Succession  of  Lewis  (La. ) 83,  84,  86 

Succession  of  Packwood  (La.) 178,  232,  349,  354 

Succession  of  Petit  (La.) 328,  331 

Succession  of  Steer  (La.)       ...    62,  66,  72,  73,  79.  109,  115,  118,  128,  176 

Succession  of  Wilder  (La.) 146,148,179 

Suit  V.  Woodhall  (Mass.) 294,  295,  372,  377,  384,  428 

Sullivan  v.  Sullivan  (Mich.) 271,  294,  296,  413 

Supervisors  v.  Galbraith  (U.  S.) 443,  447 

Suter  o.  Suter  (Miss.) 94,  99 

Sutro  Tunnel  Co.  v.  Mining  Co.  (Nev.) 466 

Sutton  V.  Warren  (Mass.)       20,  160,  154,  161,  171 

Swank  v.  Hufnagle  (Ind.) 29,  38 

Swann  r.  Swann  (U.  S.) 21,49,403 

Swedish- American  Bank  v.  Bleecker  (Minn.) 288 

Talbot  v.  Chamberlain  (Mass.) 68,  72,  88, 107,  108, 109 

Talbott  V.  Transportation  Co.  (la.) 381,  406,  407 

Talmage  v.  Chapel  (Mass.) 230,  236,  238 

Tappan  v.  Bank  (U.  S.) 282 

Tarbox  v.  Childs  (Mass.) 294,  469 

Tax  on  Foreign  Held  Bonds  (U.  S.)       281,  282,'  283 

Taylor  v.  Badoux  (Tenn.) .    326 

V.  Pennsylvania  Co.  (Ky.)       241,  480,  492 

t>.  Sharp  (N.  C.)     ....         47,124,145,146,362,411 

Tegler  v.  Shipman  (la.) 47,  296,  296,  377,  384,  428 

Tenant  v.  Tenant  (Penn.) 378,  444,  629 

Texas,  etc.  R.  R.  Co.  v.  Cox  (U.  S.) 26,  492 

Thatcher  ».  Morris  (N.  Y.) 384,424,428,527 

Thayer  v.  Boston  (Mass.) 123 

The  Antelope  (U.  S.) 21 

The  Brantford  City  (U.  S.) 356,  362,  366,  406,  428,  481 

The  City  of  Carlisle  (U.  S.) 514 

The  Energia  (U.  S.) 379,  406 

The  Glenmavis  (U.S.) 363,  406 

The  Guildhall  (U.  S.) 406 


TABLE  OP  CASES.  xlix 

[References  are  to  Pages.] 

The  HaiTJ8burg  (U.  S.) 496 

The  Homestead  Cases  (Va.) 517 

The  Hugo  (U.  S.) 365,  406 

The  Iowa  (U.  S.) 406 

The  Majestic  (U.S.) 406,407 

The  Marina  (U.  S.) 302,  303 

The  Oranmore  (U.  8.)       406 

The  Kio  Grande  (U.  S.) 1«7 

The  Sapphire  (U.  S.) 609 

The  Scotland  (U.  S.) 481 

The  Venus  (U.  S.) 125 

Therouxt-.  R.  R.  Co.  (U.  S.) 624 

Thomas  v.  Morrissett  (Ga.) 189 

Thompson  v.  Ketcham  (N.  Y.) 148,  378,  532 

V.  Thompson  (Ala.) 203 

■y.  Whitman  (U.  S.) 190,197 

Thomson-Houston  Electric  Co.  v.  Palmer  (Minn.)  .    .    .   362,  411,  469,  505, 

527,  630 

Thorn  v.  Weatherly  (Ark.) 530 

Thorndike  v.  Boston  (Mass.) 281 

Thornton  v.  Curling  (Eng.) 344 

V.  Dean  (S.  C) 363,  434 

Thorp  V.  Thorp  (N.  Y.) 19,  151,  159,  160 

Thuret  v.  Jenkins  (La.) 43,  44,  273,  299 

Thurston  v.  Fercival  (Mass.) 478 

i;.  Rosenfield  (Mo.) 31,  311,  314,  317 

V.  Thurston  (Minn.) 191,  195,  196,  199,  203,  207,  208 

Tilden  v.  Blair  (U.  S.) 372,  391,  438,  436 

Tiilotsonv.  Prichard  (Vt.) 457,476 

Tingley  v.  Bateman  (Mass.) 289 

Tipton  V.  Tipton  (Ky.) 59,  67 

Tooey  v.  Lindsay  (U.  S.)       170 

Toof  17.  Miller  (la.) 272 

Toronto,  etc.  Trust  Co.  v.  R.  R.  Co.  (N.  Y.) 266 

Touro  V.  Cassin  (S.  C.) 428,  429 

Townes  v.  Durbin  (Ky.) 177 

Townsend  v.  Coxe  (111.) 31 

V.  Kendall  (Minn.) 86,  88,  89,  225,  259,  261 

Train  v.  Kendall  (Mass.) 316 

Trasher  v.  Everhart  (Md.) 507 

Trevor  r.  Wood  (N.Y.) 372 

Trimbey  v.  Vignier  (Eng.)     . 393,  394,  449 

Trotter  r.  Trotter  (Eng.) 341,343 

True  V.  Ranney  (N.  H.) 10,  152, 160 

TuUer  v.  Arnold  (Cal.) 290 

Tunstall  v.  Pollard  (Va.) 233 

Tyler  i;.  People  (Mich.) 500 

V.  Strang  (N.  Y.)    .     .    . 279 

Udnt  v.  Udny  (Eng.) 72,  76, 114, 120, 125, 126,  128, 149,  216 

Ufford  V.  Spaulding  (Mass.) 628,  529,  530 

Underwood  v.  Mortgage  Co.  (Ga.) 434 

Union  Bank  v.  Hartwell  (Ala.) 89, 145,  272,  298 

V.  State  (Tenn.) 282 

Union  Pacific  R.  R.  Co.  v.  Baker  (Kan.) 277 

United  States  v.  Britton  (U.  S.) 501 

d  ^ 


1  TABLE  OF  CASES. 

[References  are  to  Pages.] 

United  States  v.  Crosby  (U.  S.) 28 

i;.  Guiteau  (U.  S.) 600 

V.  Howell  (U.  S.) 601 

V.  Plimpton  (U.  S.) 602 

f.  R.  K.  Co.  (U.  S.) 282 

i;.  Wagner  (Eng.) 609 

United  States  Investment  Co.  v.  Windmill  Co.  (Kan.) 459 

United  States  Sav.  and  L.  Ass'n  v.  Scott  (Ky.) 379,  434 

Upton  u.  Nortlibridge  (Mass.) 73,  106 

Usher  r.  R.  R.  Co.  (Penn.) 25,239,242,493 

Valk  v.  Valk  (R.  I.) 199,  200 

Van  Buskirk  v.  Warren  (N.  Y.) 305 

Van  Cleef  i;.  Therasson  (Mass.) 469 

Van  Fossen  v.  State  (Ohio) 101,  133,  170,  184,  196,  198 

Van  Matre  v.  Sankey  (111.)    36,  87,  74,  75,  79,  80,  82,  83,  85,  93, 131, 189, 192, 

221   222  629 

VanOrsdalu.  Van  Orsdal  (la.) 203,' 206,' 208 

VanRaden  f.  R.  R.  Co.  (N.  Y.) 487 

Van  Steenwyk  v.  Washburn  (Wis.) 341,  344,  345 

Van  Storch  i;.  Griffin  (Penn.) 157 

Van  Vleet  v.  Sledge  (U.  S.)       433 

Van  Voorhis  v.  Brintnall  (N.  Y.)    .    10,  11, 19,  21,  26,  151,  152,  164,  157,  169, 

160,  161,  166 

Van  Wyckr.  Read  (U.  S.) 278 

Vander  Donk  w.  Thelusson  (Eng.) 630 

Vanderpoel  v.  O'Hanlon  (la.) 60 

Vansant  v.  Roberts  (Md.)       139 

Varnum  u.  Camp  (N.J.) 312,313,315,316,317 

Vassar  U.Camp  (N.Y.) 872,373 

Vaughn  u.  Barret  (Vt.) 233 

i;.  Northup  (U.  S.) 226,231,232,235,286,264,265 

Vawteru.  R.  R.  Co.  (Mo.) 241,480,492 

Venus,  The  (U.  S.) 126 

Vermilya  v.  Beatty  (N.  Y.) 232,  236 

Vermont  Bank  v.  Porter  (Conn.) 466,  467,  613,  526 

Vidal  V.  Thompson  (La.) 411,  412 

Vischer  v.  Vischer  (N.  Y.)      ....      103,  104,  115,  117,  125, 167,  169,  196 

Voorheisy.  Society  (Mioh.) 371,398.409 

Vroora  V.  Van  Home  (N.  Y.)      ...     227,  229,  231,  232,  235,  277,  284,  328 

Wabash  R.  R.  Co.  v.  Dougan  (111.) 516,  619 

Waldo  «;.  Waldo  (Mich.) 19T 

Waldron  v.  Ritchings  (N.  Y.) 372 

Walker  I'.  Marseilles  (Miss.) 299 

Wall  V.  Equitable,  etc.  Society  (U.S.) 379,409 

Walsh  V.  Mayer  (U.  S.) 522 

Walters  r.Whitlock(Fla.) 310,313,316 

Walworth  t).  Harris  (U.S.) 46,307,309 

Warder  v.  Arell  (Va.) 466,  467 

Ware  v.  Wisner  (U.  S.) 333,  349 

Warner  v.  Jaffray  (N.  Y.) 316,  318,  326 

Warren  v.  Lynch  (N.  Y.) 441,  606,  507 

V.  Prescott  (Me.) 33 

Warrender  t;.  Warrender  (Eng.)    ...  5,  94,  95,  96,  104,  106,  167,  169,  199 
Washburn  r.  Van  Steenwyk  (Minn.) 29,341,344,345,346 


TABLE  OP   CASES.  B 

[References  are  to  Pages.] 

Washburn  v.  White  (Mass.) 82,  92 

Washington  w.  Beaver  (Penn.) 77,87,93,106 

Watkins  v.  Holman  (U.  S.) 29,  236 

V.  Watkins  (Mass.)      .    94,  99,  100,  103,  133,  170,  183,  184,  198,  199,  200 

u.  Watkins  (Ind.) 196,198 

Watson  V.  Brewster  (Penn.) „ 507 

i;.  Campbell  (N.  Y.) 306,318 

y.  Lane  (N.J.) 372,433 

WayneCounty  Bank  V.  Low  (N.Y.) 371,373,389,434,436 

Webb's  Estate  (N.  Y.) 168 

Webber  v,  Howe  (Mich.) 294,  373,  377,  384,  428 

Webster  r.  Howe  Machine  Co.  (Conn.) 447 

V.  Munger  (Mass.) 294 

WeiU.  Golden  (Mass.) 294,295,384.428 

Weinstein  v.  Freyer  (Ala.) 271,  293,  302 

Welch  r.  Adams  (Mass.) 231,340 

Welles' Estate  (Penn.) ^7,  263,  264,  265,  328,  329,  331 

Wells,  Fargo,  &  Co.  U.Davis  (N.Y.) 456 

Wesner  w.  O'Brien  (Kan.)       208 

West  Cambridge  ».  Lexington  (Mass.)    .     .  11,  18,  25, 150,  164,  167, 168,  159 

Western  v.  Insurance  Co.  (N.  Y.) 408 

Western,  etc.,  R.  R.  Co.  v.  Cotton  Mills  (Ga.) 406,  407 

Western  Transfer  Co.  v.  Kilderhouse  (N.  Y.) 371 

Western  Union  Tel.  Co.  v.  Phillips  (Tex.) 356 

V.  Way  (Ala.) ;      404,  419 

Wheeler  v.  HolUs  (Tex.) 83,  86,  88,  89,  91 

r.  Jackson  (U.S.) 522 

Whicker  v.  Hume  (Eng.) 72 

Whipple  V.  Thayer  (Mass.) 314 

Whiston  V.  Stodder  (La.) 372 

White  V.  Brown  (U.  S.) Ill 

V.  Howard  (Conn.) 32 

V.  Howard  (52  Barb.  294) 81,  88,  89 

V.  Howard  (46  N.  Y.  144) 141,  334 

V.  Tennant  (W.  Va.)    62,  65,  67,  69,  70,  109, 115,  117,  118,  119,  120,  176, 

328  331 

Whitford  r.  R.  R.  Co.  (N.  Y.) 478,  49l',  532 

Whitney  v.  Sherborn  (Mass.) 64,  65,  118 

Wick  u.  Dawson  (W.Va.) 29,38,247,505 

Wightman  v.  Wightman  (N.  Y.) 20,  161 

Wilcox  r.  Ellis  (Kan.) 281,283 

Wilder,  Succession  of  (La.) 146, 148,  179,  411 

Wilkins  v.  EUett  (9  Wall.  740) 225,  227,  2.30,  242,  253,  328 

V.  EUett  (108  U.  S.  256) 234,  242 

Willettsi^.Waite  (N.  Y.) 264,265,322,323,324,325,326 

Williams  v.  Armroyd  (U.  S.) 187 

V.  Dry  Goods  Co.  (Okl.)     10,  13,  31,  62,  271,  310,  311,  313,  314,  316,  317, 

318,  321 

V.  Haines  (la.) 425 

r.  IngersoU  (N.Y.) 287 

V.  Kimball  (Fla.) 36 

V.  Mans  (Penn.)  234 

V.  Gates  (N.  C.) 162,  156,  159 

V.  Saunders  (Tenn.)       29,  32,  33,  70,  94,  98, 118,  126, 136, 137,  272,  333, 

334.335 
».  Storrs  (N.  Y.) 242 


In  TABLE  OF  CASES. 

[References  are  to  Pages.] 

Williams  v.  Wade  (Mass.) 396,  454 

V.  Williams  (N.  Y.) 100,  191,  204 

Williamson  v.  Parisien  (N.  Y.) 198 

1-.  Smart  (N.  C.) , 331 

Wilson  V.  Cox  (Miss.) 341 

V.  Holt  (Ala.) 157,  158 

r.  Lazier  (Va.)       . 389,444,526 

V.  Mills  Co.  (N.Y.) 413 

V.  Tootle  (U.  S.) 494 

v,  Wilson  (Eng.) 170 

Winchelsea  t;.  Garetty  (Eng.) 248,  249,  250 

Winswall  v.  Sampson  (U.S.) 267 

Wolf,  Appeal  of  (Penn.) 216 

Wolfy.  Burke  (Colo.)        370,41.3,414,415,417,418,625,531 

Wood  r.  Insurance  Co.  (Wash.) 371,398,399,408 

V.  Malin  (N.  J.) 512 

V.  Roeder  (Neb.) 59 

V.  Watkinson  (Conn.) 189 

r.  Wheeler  (N.C.) 30,44,144,146 

V.  Wood  (N.  Y.) 40,  88,  89,  90,  259,  387 

V.  Wood  (Ark.) 102,  200 

Woodard  v.  R.  R.  Co.  (Ohio) 492 

Wooden  v.  R.  R.  Co.  (N.  Y.) 25,  239,  242,  489,  492,  494 

Woodruff  V.  Hill  (Mass.) 447 

Woodsen  v.  Owens  (Miss.) 447 

Woodward  v.  Brooks  (III.)     ....  10,  16,  266,  279,  312,  313,  314,  315,  318 
V.  Woodward  (Tenn.)       33,  35,  80,  81,  82,  83,  84,  85,  88,  92,  93,  133,  141, 

143  216  222 

Woodworth  r.  Spring  (Mass.) 17,  88,  180,  258,' 259,' 260 

Wooley  «;.  Lyon  (111.) 396,397,452 

Worcester  Bank  v.  Wells  (Mass.) 392 

Worley  v.  Hineman  (Ind.) 457,  476 

Worth  V.  Ashe  County  (N.  C.) 282 

Wright's  Trusts  (Eng.) 35,  75,  216 

Wrigley,  Inre  (N.  Y.)       59 

Wunstan  v.  Higgins  (N.  Y.) 188 

Wyman  v.  Halstead  (U.  S.) 272,  283 

Wynne  v.  Wynne  (Miss) 333,  341,  347,  348,  349 

Yates  v.  Thompson  (Eng.) 834,  339,  341 

Yelverton  v.  Yelverton  (Eng.) 97,  99 

Young  i;.  Harris  (Ky.) 378,394,454 

I'.  PoUak  (Ala.) 72,  111,  112,  117 

r.  Templeton(La.) 180 

ZiFCBTv.  Thompson  (Mass.) 813,316 


u^ 


CONFLICT    OF   LAWS. 


PART    I. 

INTRODUCTORY. 


CHAPTER  I. 


INTRODUCTION. 


§1.    Origin  of  Private    International   Law. —  Of  the   exist 

ence  among  the  ancients  of  the  branch  of  municipal  law  known 
as  Private  International  Law,  or  The  Conflict  of  Laws,  we 
have  no  authentic  record.  If  there  were  any  such  cases,  they 
have  left  no  impress  behind  them,  and  were  probably  decided  as 
they  arose,  upon  no  definite  principles. 

Nor  during  the  Middle  Ages  was  there  any  material  advance. 
The  nations  of  mediaeval  Europe  had  little  intercourse  with  one 
another,  save  for  warlike  purposes.  Commerce  was  as  yet  but 
scantily  developed,  traveling  much  impeded.  With  but  small 
occasion  for  such  codes  of  rules,  little  attempt  was  made  to 
establish  them. 

But  with  the  revival  of  commerce,  the  surer  guaranties  offered 
for  the  safety  of  travelers  by  reason  of  the  more  orderly  con- 
dition of  the  European  States,  the  more  frequent  intercourse 
between  nations,  and  the  advancement  of  conceptions  of  justice 
and  order,  the  need  of  such  rules  began  to  be  experienced,  just 
as,  at  an  earlier  period,  the  necessity  for  tlie  regulations  of 
■public  international  law  had  been  felt. 

Only  within  the  past  century  however  has  any  regular  form 
been  imparted  to  the  subject.  In  recent  years  it  has  been  much 
discussed  both  by  English  and  American  writers  and  judges,  as 
well  as  by  continental  jurists,  until  it  has  finally  assumed  the 

1 


2  PUBLIC   AND   PRIVATE  INTERNATIONAL  LAW.         §  5 

proportions  of  a  distinct  branch  of  legal  science,  though  many 
of  its  leading  principles  still  remain  remarkably  obscure  and 
unsettled.^ 

§  2.  Public  and  Private  International  Law  disting^shed. 
—  Private  international  law  may  be  distinguished  from  the 
public  in  three  important  particulars. 

I.  As  to  the  persons  on  whom  it  operates. 

Private  citizens  arethe_^hjpc.ts  oUhigbranch  of  the  law, 
while  public  internationaJLJasg— doalo  foi 
nations  as  suchi 

Itis"true  that  occasionally,  under  the  latter  law,  individuals 
are  interested  in  the  questions  raised,  and  are  sometimes  even 
the  cause  of  international  complications,  perhaps  of  war  ;  but  it 
is  not  as  individuals  that  public  international  law  interferes  in 
their  behalf  or  condemns  them.  It  is  because  individuals  neces- 
sarily form  a  constituent  part  of  every  State,  parts  of  which  the 
nation  as  a  whole  is  made  up  ;  and  as  no  injury  can  be  iiu 
flicted  on  one  part  of  the  body  or  by  one  member  without  the  par- 
ticipation of  the  whole,  so  no  member  of  the  body  politic  can  be 
injured  without  damage  to  the  material  interests,  the  dignity, 
and  the  honor  of  the  whole.  It  is  because  of  this  blow  to  or 
by  the  State  that  public  international  law  interferes  in  such 
matters. 

Private  international  law,  on  the  other  hand,  is  a  part  of  the 
municipal  law  of  each  State.  It  deals  with  individuals  as  in- 
dividuals, as  persons  asking  for  justice  at  the  hands  of  judges 
who  are  striving  to  give  it,  regardless  of  nationality  or  locality. 

II.  As  to  the  transactions  to  which  it  relates. 

The  la^v^ofnations  recognizes  in  general  only  transactions  in 
which  sovereign  Htates  are  interested.  Not  so  with  private  in- 
toHi^tional  law.  ine  transactions  over  which  it  assumes  control 
are  strictly  private  in  their  nature,  in  which  the  State  as  such 
has  generally  no  interest.  The  private  contract  of  the  citizen 
of  one  State  with  the  citizen  of  another,  or  a  conveyance  or  will 
made  by  the  citizen  of  one  State  transferring  property  in  an- 
other, are  subjects  of  private  international  law,  with  which  pul> 
lie  international  law  has  no  concern. 

1  For  the  contents  of  this  section,  cf.  Story,  Confl.  L.,  ch.  L 


§  2       PUBLIC  AND   PBIVATB  INTBRNATIONAL,  LAW.  8 

III.  As  to  the  remedies  applied. 

In  cases  to  which  private  international  law  is  applicable, 
recourse  is  had  to  judicial  tribunals  acting  under  the  authority 
and  in  accordance  with  the  rules  of  procedure  of  the  country  in 
which  they  sit.  They  are  asked  to  hear  the  evidence  and  ad- 
minister justice  as  though  the  case  were  one  of  purely  domestic 
concern.  But  in  a  contest  between  sovereign  States  arising 
under  the  law  of  nations,  no  such  recourse  is  ordinarily  practi- 
cable. No  State  would  consent  to  have  its  disputes  decided  by 
the  courts  of  another  power,  nor  to  appear  before  them,  a  suppli- 
ant for  the  justice  it  demands  as  a  right. 

Yet  this  general  principle  is  not  altogether  free  from  excep- 
tions or  apparent  exceptions,  the  most  pronounced  of  which, 
perhaps,  arises  from  the  peculiar  form  of  government  existing 
in  the  United  States. 

The  States  of  this  Union  are  sovereign  States,  save  in  so  far 
as  they  have  by  solemn  compact  yielded  their  sovereignty  to  the 
federal  government.  They  have  surrendered  their  sovereignty 
only  with  respect  to  their  public  relations  with  other  nations, 
and  with  respect  to  the  few  other  matters  named  in  the  federal 
constitution.  In  all  other  respects  they  are  sovereign,  having 
exclusive  control  over  persons  and  things  within  their  terri- 
tories.* Hence,  though  the  federal  government  is  the  only 
sovereign  in  the  United  States  subject  to  public  international 
law,  every  State  and  Territory  in  the  Union  may  be  the  subject 
of  private  international  law. 

But  sovereign  as  the  States  are,  in  most  matters  of  local  con- 
cern, it  is  provided  by  the  federal  constitution  '  that  the  Supreme 
Court  shall  have  jurisdiction  to  decide  all  disputes  arising  be- 
tween the  States.  Thus  is  presented  with  us  the  extraordinary 
spectacle  of  two  or  more  sovereign  or  quasi-sovereign  States 
submitting  their  differences  to  a  learned  and  illustrious  tri- 
bunal for  an  orderly  and  peaceful  solution,  anticipating  the 
dream  of  a  universal  Court  of  Appeal  for  all  nations. 

Meanwhile,  in  the  absence  of  such  an   exalted   tribunal,   to 

^  Hood  V.  State,  56  Ind.  263,  26  Am.  Rep.  21,  22;  Petersen  v.  Chemicaj 
Bank,  32  N.  Y.  21,  40-41,  88  Am.  Dec  2»8. 
»  U.  S.  Conat,  Art  3,  §  8. 


4  FOREIGN   ELEMENT  ESSENTIAL.  §  h 

which  all  nations  may  resort,  the  only  remedies  for  the  infringe- 
ment of  a  nation's  rights  are  a  recourse  to  diplomatic  channels ; 
should  that  fail,  to  retorsion,  reprisal,  and  other  means  short  of 
war;  and  finally  to  the  arbitrament  of  arms, —  that  last  dread- 
ful resort  of  an  insulted  or  injured  people. 

§  3.  Foreign  Element  essential  to  Operation  of  Private 
International  Law.  —  Private  international  law  embraces  those 
universal  principles  of  right  and  justice  which  govern  the 
courts  of  one  State  having  before  them  cases  involving  the 
operation  and  effect  of  the  laws  of  another  State  or  country. 
Such  cases  arise  whenever  a  foreign  element  is  introduced  into 
a  transaction. 

If  the  transaction  in  question  arises  wholly  within  a  single 
State,  all  the  parties  interested  having  been,  and  continuing  to 
be,  domiciled  and  actually  present  there,  the  question  being 
raised  there  also,  no  foreign  element  exists  to  cause  any  inter- 
ference with  the  usual  and  regular  enforcement  of  the  domestic 
municipal  law  by  the  domestic  tribunals.  There  is  no  room  in 
such  case  for  the  application  of  the  rules  of  private  international 
law. 

But  if  we  suppose  one  or  more  of  the  parties  to  live  in  an- 
other State,  or  the  transaction  or  some  part  thereof  to  have 
arisen  elsewhere,  a  foreign  element  is  at  once  imported  into  the 
case,  and  it  may  be  asked  whether  the  court  is  to  be  governed 
in  its  decision  by  the  domestic  law,  by  the  law  of  the  place 
where  the  parties,  or  some  of  them,  live  (or,  in  technical  phrase, 
are  domiciled),  by  the  law  of  the  place  where  the  transaction  or 
part  thereof  arises,  or  by  the  law  of  the  place  where  property 
affected  thereby  may  be  situated  ? 

Thus,  if  A,  a  citizen  of  New  York,  should  there  mortgage  to 
B,  a  citizen  of  Maryland,  personal  property  situated  in  Virginia, 
which  property  A  afterwards  removes  to  Illinois  and  sells  to  C, 
where  B  brings  suit  to  recover  it,  a  prominent  question  before 
the  Illinois  court  might  be:  Shall  we  decide  upon  the  valid- 
ity of  B's  title  according  to  the  law  of  New  York,  where  the 
owner  lived  and  the  transfer  was  made ;  or  according  to  the  law 
of  Maryland,  where  the  vendee  lives;  or  according  to  the  law  of 
Virginia,  where  the  property  happened  to  be  at  the  time  of  the 


§  4  BASIS   OP   PRIVATE  INTERNATIONAL  LAW.  5 

transfer  ;  or  shall  we  discard  all  these  foreign  elements  entirely, 
and  let  the  domestic  law  —  the  law  of  Illinois  —  control  ? 

It  is  the  aim  of  the  branch  of  law  with  which  we  are  now  en- 
gaged to  determine,  in  cases  of  this  character,  which  law  should 
be  followed. 

§  4.  Basis  of  Private  International  Law.  —  Effect  is  given 
to  a  foreign  law,  not  through  any  convention  or  agreement  of 
nations,  but  merely  because  justice  and  policy  often  demand 
that,  in  the  enforcement  and  interpretation  of  contracts  and 
other  transactions  possessing  a  foreign  element,  the  court  should 
be  governed  by  some  other  than  the  domestic  law. 

When  one  voluntarily  does  an  act  in  a  particular  country,  it 
is,  as  a  general  rule,  just  and  proper  that  the  effect  of  the  act 
should  be  measured  by  the  law  under  which  it  is  done.  The 
party  need  not  do  the  act  there  unless  he  chooses,  and  if  he  elects 
to  do  it  there,  the  just  measure  of  its  operation  is  the  law  to 
which  he  has  thus  voluntarily  submitted  himself.  In  other 
words,  the  situs  or  locality  of  the  act  in  question  furnishes  the 
law  which  will  govern  it.  And  the  same  general  principle,  as 
we  shall  hereafter  see,  applies  to  transactions  and  circumstances 
which  are  not  the  result  of  voluntary  action.  The  law  of  the 
situs  of  the  particular  matter  will  control. 

It  is  often  said  that  a  court,  in  enforcing  a  foreign  law,  acts 
ex  comitate,  and  if  care  is  observed  to  note  the  meaning  of  the 
term  "comity,"  the  expression  is  not  erroneous.  The  basis  of 
private  international  law  may  be  said  to  be  comity,  but  it  is 
as  much  a  comity  shown  to  the  litigants  in  referring  to  the 
law  of  the  situs,  as  above  explained,  as  a  comity  to  the  State 
whose  law  is  thus  enforced.  In  truth,  it  is  something  more 
even  than  comity  to  the  litigants.  It  is  in  answer  to  the  de- 
mands of  justice  and  an  enlightened  policy.^ 

It  is  to  be  observed  that  the  rules  of  private  international 
law  do  not  derive  force  from  a  power  superior  to  the  sovereign 
States  which  recognize  and  enforce  them.  On  the  contrary,  the 
very  essence  of  a  sovereign  State  is  that  it  has  no  superior.  It 
is  one  of  the  fundamental  principles  of  this  branch  of  the  law 

1  Robinson  w-  Queen,  87  Tenn.  445,  11  S.  W.  38,  39  ;  Warrender  v.  Wax- 
tender,  2  CI.  &  F.  488,  530.     See  Whart.  Confl.  L.  §§  1  a,  2,  3. 


6  BASIS   OF  PEIVATE   INTERNATIONAL  LAW.  §  4 

that  each  sovereign  State  is  supreme  within  its  own  limits.  It 
is  therefore  within  the  power  of  such  a  State  at  any  time  to  ex- 
clude any  or  all  foreign  laws  from  operation  within  its  borders. 
To  the  extent  that  it  cannot  do  this,  it  is  not  sovereign.  Hence, 
when  effect  is  given  to  a  foreign  law  in  any  territory,  it  is  only 
because  the  municipal  law  of  that  State  temporarily  abdicates 
its  supreme  authority  in  favor  of  the  foreign  law,  which,  for 
the  time  being,  with  reference  to  that  particular  matter,  be- 
comes itself,  by  the  will  of  that  State,  its  municipal  law.' 

There  are  however  some  cases  in  which  the  courts  will  not 
permit  a  foreign  law  to  supplant  the  domestic  law.  These 
exceptional  cases  will  be  considered  more  at  large  hereafter." 

These  principles  have  been  recognized  by  the  United  States 
Supreme  Court,  as  entering  into  the  definition  of  the  "comity" 
which  governs  the  courts  in  enforcing  foreign  laws.  In  Hilton 
V.  Guyot*  it  is  said:  "Comity  is  neither  matter  of  absolute 
obligation  nor  of  mere  courtesy  and  good  will.  It  is  the  recog- 
nition which  one  nation  allows  within  its  territory  to  the  legis- 
lative, executive,  or  judicial  acts  of  another  nation,  having  due 
regard  both  to  international  duty  and  convenience,  and  to  the 
rights  of  its  own  citizens  or  of  other  persons  who  are  under  the 
protection  of  the  laws." 

It  is  of  the  utmost  importance  to  observe  at  the  outset  that 
every  point  that  may  come  up  before  a  court  for  its  decision 
must  have  a  situs  somewhere,  and  each  point  that  arises  will  in 
general  be  governed  by  the  law  of  the  State  where  that  situs  is 
ascertained  to  be.  Whether  the  interest  before  the  court  be  one 
arising  from  the  voluntary  action  of  the  individual,  or  whether 
it  be  created,  without  voluntary  action,  merely  by  the  law  itself, 
is  immaterial.  It  must  have  its  situs,  assigned  by  the  indi- 
vidual or  by  the  law.  Numerous  instances  of  this  principle 
will  appear  later.  A  tort,  a  contract,  a  conveyance  of  property, 
the  devise  or  descent  of  land  or  personalty,  marriages,  all  have 
their  situs,   whose  law  will  generally  govern  with   respect  to 

2  See  Whart.  Confl.  L.  §§  1,  2,  8 ;  Dalrymple  v.  Dalrymple,  2  Hagg. 
Cons.  58. 

»  Post,  Chapter  II. 
*  159  U.  S.  lis- 


§  4  BASIS   OF   PRIVATE  INTERNATIONAL  LAW.  7 

tbem.     To  ascertain  the  situs  in  such  cases  and  others  is  in 
large  measure  the  purpose  of  this  work. 

In  the  future  discussion  therefore  we  will  examine  (1)  The 
situs  of  the  person ;  (2)  The  situs  of  status ;  (3)  The  situs  of 
personal  property  ;  (4)  The  situs  of  contracts  ;  (5)  The  situs  of 
torts ;  (6)  The  situs  of  crimes ;  and  (7)  The  situs  of  remedies. 
But  before  entering  into  the  discussion  of  these  heads,  a  chapter 
will  be  devoted  to  the  consideration  of  certain  exceptional  cases 
wherein  it  is  held  that  neither  the  claims  of  situs  nor  the  dc' 
mands  of  comity  are  strong  enough  to  induce  the  substitution 
of  a  foreign  for  the  domestic  law. 


GBOUNDS  OF   EXCEPTIONS. 


§5 


CHAPTER  II. 

EXCEPTIONS  TO  TELE  APPLICATION  OF  A  FOREIGN  LAW. 


§  5.  General  Orounds  upon  which  t±ie  Exceptions  are 
based.  —  In  the  jtrecedingsection  it  hagbeen  shown  that^the 
basis  of  private  international  law  is  ^*internation^_i:Qmity," 
whichin  reality  is  nothing  more  than  an  enlightened  sentiment 
of  justice  and  policy. 

But-lt  must  never  be  fnrgntt:pn  fhaf,  P-mwy  anvftgfeign^Sfglft  haS 

abfrftljltg  WT'^*'"^  "^*"'  *^'^  persons  and  property  within  its  bor- 
ders,   and   may_  regulate   tb^TT^    ^    i*^«    rivtrn    iM»frmT1ft"hf -prnprifti-y 

and-poljgy  dictate.^  The  question  in  all  ouch  caooo  ia.  ahall  it 
exercise  the_right  t"  ^nntrnl  ^^^QgQ  ""^<"tftrff  J2Z^°  own  law,  or 
shall  it  yiftld  tn  tbe_jaw  of  another  State?  IfiF~Choo8efr--the 
latter  course,  it  does  so  not  because  the  foreign  legislation  or 
instrEution8""^ve  an  exterritorial  force  within  its  limit8."'but 
8 imply, J)ecanBe~piQiicy  and  justicft  HprnaruT it.' 

It  may  be  that  the  legislature  of  the  State  in  which  the  ques- 
tion arises  has  foreseen  and  provided  for  the  contingency,  and 
has  expressly  laid  down  the  rule  that  shall  govern  its  courts 
should  a  foreign  element  creep  into  a  particular  case.  In  such 
event  the  legislature  may  enact  that  the  foreign  law  is  to  control, 
or  that,  notwithstanding  the  foreign  element,  the  domestic  law 
shall  still  govern.  This  is  a  matter  of  policy  wholly  in  the 
discretion  of  the  legislaturft,  irttfl  wbifih  tb^^^jMirrrLH  i-iiiiimt  in- 

I  See  Blackinton  v.  Blackinton,  141  Mass.  432,  436 ;  ElUs  v.  Ellis, 
55  Minn.  401,  56  N.  W.  1056,  1058 ;  Roth  v.  Roth,  104  111.  35,  44  Am.  Rep. 
81,  82,  83  ;  Cook  r.  Cook,  56  Wis.  195,  43  Am.  Rep.  706,  14  N.  W.  33,  35  ; 
Green  r.  Van  Buskirk,  5  Wall.  307  ;  s.  c.  7  Wall.  139  ;  Hervey  v.  Locomo- 
tive Works,  93  U.  S,  664  ;  Pennoyer  r.Neff,  95  U.  S.  714,  722;  Atherton  Co. 
r.  Ivee,  20  Fed.  894,  896;  Moore  v.  Title  &  Trust  Co.,  82  Md.  288,  33  AU 
641,  642. 

•  PetersMi  v.  Chemical  Bank,  32  N.  Y.  21,  44,  88  Am.  Dec.  298. 


^ 

■ 

§  6  GROUNDS  OF  EXCEPTIONS.  9  ' 

quire.  In  the  latter  case,  there  would  be  no  room  for  the  opera- 
tiono?  the  rules  of  private  international  law.  It  is  merely  a 
question  of  the  courts'  obedience  to  the  mandates  of  the  State's 
municipal  law. 

But  it  rarely  happens  that  the  legislature,  in  enacting  J 
statute,  expressly  deals  with  cases  involving  a  foreign  element. 
Primarily  the  legislature  enacts  laws  for  its  own  citizens,  touch- 
ing property  and  transactions  within  the  State,  and  does  not 
usually  notice  expressly  those  cases  in  which  the  person,  the 
property,  or  the  transaction  affected  may  be  without  the  State,  in 
whole  or  in  part.  Under  these  circumstances  therefore  the  duty 
devolves  upon  the  courts  to  determine  whether  the  municipal 
law,  by  its  silence,  means  to  include  or  to  exclude  these  cases. 
Here  it  is  that  the  rules  of  private  international  law  come  into 
play,  and  guide  the  courts  in  the  solution  of  problems  that  are 
often  intricate.  ^^ 

There  may  be  said  to  be  five  instances  wherein  it  is  generally  ^i/y^ 
considered  that  the  municipal  law  of  the  State  where  the  ques-  r- 
tion  is  raised  (lex  fori)  forbids  the  enforcement  of  a  forei^n-las^./^ 

(1)  Where  the  enforcement  of  the  foreign  law  would  contraven^  1 
some  established  and  important  policy  of  the  State  of  th^-fortim^f'^     ^ 

(2)  where  the  enforcement  of  such  foreign  law  would  involve 
injustice  and  injury  to  the  people  of  the  forum;  (3)  where  such 
enforcement  would  contravene  the  canons  of  morality  established  A")    ' 
by  civilized  society;   (4)  where  the  foreign  law  is  penal  in  its         -X 
nature;  and  (5)  where  the  question  relates  to  real  property.         '  ^''»'^■^vl 

These  exceptions  are  of  supreme  importance  in  the  study  of      ^V- 
this  subject,  and  must  be  constantly  borne  in  mind,  for  they     xj^^j^ 
constitute  standing  exceptions  to  almost  every  proposition  that    ^ 
can   be  laid  down.     Yet  they  are   often  lost  sight  of  by  the-»_^ 
courts,  or  are  confounded  with  the  principles  themselves.     The  /) 

unnoticed  existence  and  enforcement  of  them  in  many  of  the    4^^ 
cases  is  one  main  cause  of  the  confusion  that  envelops  the  sub- 
ject.    The  reader  must  therefore  pardon  a  constant  recurrence 
to  them  in  the  course  of  the  discussion  which  is  to  follow. 

In  view  of  these  frequently  recurring  exceptions,  and  to  avoid 
a  lengthy  periphrasis,  we  will  in  future  designate  as  *'Thb 
VsoPEK  Law  "  that  law  which,  upon  general  principles,  is  th« 


10  PIRST    EXCEPTION  —  POLICY.  §  6 

proper  law  to  govern  the  case.  If  it  is  one  of  the  exceptional 
cases  above  mentioned,  the  law  governing  it  will  be  designated 
The  Domestic  Law  or  Lex  Fori. 

§  6.  First  Exception  —  Policy  or  Interests  of  Forum  con- 
travened by  Enforcement  of  Proper  Law.  —  Few  general  prin- 
ciples of  private  international  law  are  so  well  settled  as  the  rule 
that  no  foreign  law  (even  though,  under  ordinary  circumstances, 
it  be  the  *'  proper  law  ")  will  be  enforced  in  a  sovereign  State, 
if  to  enforce  it  will  contravene  the  express  statute  law  or  an 
established  policy  of  the  forum,  or  is  injurious  to  its  interests.^ 

If  the  policy  of  the  forum  has  been  expressed  in  a  statute 
which  in  terms  covers  even  transactions  having  a  foreign  ele- 
ment, no  difficulty  will  be  apt  to  arise.  There  can  be  no  ques- 
tion then  as  to  what  is  the  pronounced  policy  of  the  forum,  a 
'policy  deemed  so  important  as  to  be  expressly  extended  by  the 
legislature  to  foreign  transactions.  If  the  forum  retains  a  ves- 
tige of  sovereignty,  the  lex  fori  will  prevail.^ 

It  is  in  cases  where  the  domestic  law  is  not  statutory  but  un- 
written, or,  if  statutory,  where  the  statute  does  not  in  terms 
apply  to  matters  involving  a  foreign  element,  that  the  difficulty 
arises.  It  is  not  in  every  case  of  this  kind  that  the  domestic 
law  is  applicable.     If  this  were  so,  there  could  never  be  any 

1  May  V.  Bank,  122  lU.  551,  13  N.  K  806,  808 ;  Frank  v.  Babbitt, 
155  Mass.  112,  115  ;  Mackey  v.  Pettijohn,  6  Kan.  App.  57,  49  Pac.  636,  637  ; 
Bowles  r.  Field,  78  Fed.  742,  743 ;  Case  v.  Dodge,  18  R.  I.  661,  29  AH.  785, 
786 ;  Despard  v.  Churchill,  53  N.  Y.  192,  200 ;  Van  Voorhis  v.  Brintnall, 

86  N.  Y.  18,  26,  40  Am.  Rep.  505 ;  Freeman's  Appeal,  68  Conn.  533,  37  Atl. 
420  ;  Armstrong  r.  Best,  112  N.  C.  59,  17  S.  E.  14, 15  ;  Com.  v.  Lane,  113  Mass. 
458,  463,  18  Am.  Rep.  509  ;  Tme  v.  Ranney,  21  N.  H.  52,  53  Am.  Dec.  164  ; 
Jackson  v.  Jackson,  82  Md.  17,  33  Atl.  317,  319  ;  Pennegar  v.  State,  87  Tenn. 
244,  2  L.  R.  A.  703,  704-5 ;  State  v.  Ross,  76  N.  C.  242,  22  Am.  Rep.  678  ; 
Edgerly  v.  Bush,  81  N.  Y.  199  ;  Woodward  v.  Brooks,  128  III.  222,  20  X.  E. 
685,  686  ;  Ex  parte  Dickinson,  29  S.  C,  453,  7  S.  E.  593,  594-5 ;  Green  i;. 
Van  Buskirk,  7  Wall.  139 ;  Smith  v.  Union  Bank,  5  Pet.  518,  527. 

2  See  WiUiams  v.  Dry  Goods  Co.,  4  Okl.  145,  43  Pac.  1148  ;  May  v.  Bank, 
122  111.  551,  13  N.  E.  806,  808  ;  Frank  v.  Babbitt,  155  Mass.  IH;  Com.  r. 
Lane,  113  Mass.  458,  463,  18  Am,  Rep.  509  ;  Bamett  v.  Kinney,  147  U.  S. 
476  ;  Butler  v.  Wendell,  57  Mich.  62,  23  N.  W.  460,  462  ;  Pennegar  v.  State, 

87  Tenn.  244,  2  L.  R.  A.  703,  704-5  ;  Kerr  r.  Dougherty,  78  N.  Y.  327,  541  j 
Case  V.  Dodge,  18  R.  I.  661,  29  Atl.  785,  786. 


§  6  FIRST   EXCEPTION  —  POLICY.  11 

practical  question  of  a  conflict  of  laws.  The  law  which  will  be 
applied  depends  upon  the  importance  attached  to  the  policy 
advocated  by  the  lex  fori.  The  legislature  is  primarily  the 
judge  of  questions  of  policy,  and  if  it  has  spoken  plainly  either 
for  or  against  the  enforcement  of  a  foreign  law  in  a  given  case, 
the  courts  must  obey.'  If  the  legislature  has  not  indicated 
expressly  its  will  that  a  particular  domestic  policy  should  con- 
trol in  all  cases,  it  then  devolves  upon  the  courts  to  determine 
in  what  cases  it  shall  control.* 

In  deciding  cases  of  this  kind  therefore  each  court  has  to  pass 
upon  the  importance  of  the  domestic  policy  maintained  by  its 
laws.  They  are  generally  loath  to  deny  the  enforcement  of  a 
proper  foreign  law,  and  will  not,  if  they  consider  the  domestic 
policy  of  minor  importance.  But  where  it  is  a  fundamental  and 
important  policy  of  the  State,  established  after  careful  consider- 
ation of  the  supposed  needs  and  wants  of  its  people,  no  foreign 
law  will  be  permitted  to  supersede  it. 

If  however  there  is  an  irreconcilable  conflict  between  the  two 
systems  of  law,  the  courts  will  usually  lean  towards  the  lex 
fori.*  Ultimately  this  question  must  be  decided  in  each  case  as 
it  arises,  and  as  the  solution  of  it  must  depend  upon  the  judg- 
ment of  each  court,  great  conflicts  of  decision  may  be  expected, 
and  indeed  have  sometimes  resulted.  A  particular  policy, 
regarded  in  one  State  as  of  the  gravest  importance,    will    be 

8  Green  v.  Van  Buskirk,  5  Wall.  307,  312 ;  Matthews  v.  Lloyd,  89  Ky. 
625,  13  S.  W.  106,  107  ;  Bowles  v.  Field,  78  Fed.  742,  743;  Cross  v.  U.  S. 
Trust  Co.,  131  N.  Y.  330 ;  Van  Voorhis  v.  Brintnall,  86  N.  Y.  18,  40  Am.  Rep. 
505  ;  Pennegar  v.  State,  87  Tenn.  244,  5J  L.  R.  A.  703,  705 ;  Ex  parte  Dick- 
inson, 29  S.  C.  453,  7  S.  E.  593,  594-5  ;  State  v.  Kennedy,  76  N.  C.  251, 
22  Am.  Rep.  683,  684  ;  Milne  v.  Moreton,  6  Binn.  (Penn.)  353,  6  Am.  Dec. 
466;  West  Cambridge  v.  Lexington,  1  Pick.  (Mass.)  506,  512,  11  Am.  Dec. 
231 ;  Ex  parte  Kinney,  3  Hughes,  C.  C.  1,  20. 

*  Legislation  subsequent  to  the  transaction  in  dispute  may  be  looked  to  in 
order  to  determine  what  importance  the  legislature  attaches  to  the  policy  of 
the  State  at  the  time  of  the  transaction.  See  Milliken  v.  Pratt,  125  Mass. 
374,  28  Am.  Rep.  241  ;  Case  v.  Dodge,  18  R.  I.  661,  29  Atl.  785,  786 ; 
Fellows  V.  Miner,  119  Mass.  541;  Freeman's  Appeal,  68  Conn.  533,  87  Atl. 
420  ;  Dammert  v.  Osborn,  140  N.  Y.  30,  44. 

*  Gardner  v.  Lewis,  7  Gill  (Md.),  378,  396  ;  Saul  v.  His  Creditors,  5  Mart 
N.  s.  (La.)  569,  16  Am.  Dec.  213  ;  Story,  Confl.  L.  §  28, 


12  SECOND  EXCEPTION  —  RESIDENTS.  §7 

relegated  to  the  background  in  another,  where  the  needs  of  the 
people  are  different.  Moreover,  in  the  same  State,  the  opinions 
of  men  will  often  differ  as  to  the  relative  importance  of  certain 
lines  of  policy,  or  perhaps  even  the  opinion  of  the  same  man  at 
different  times.  Hence,  while  recognizing  and  applying  the 
same  general  principles,  the  courts  of  different  States  may 
readily  reach  different  conclusions  in  the  same  class  of  cases, 
and  neither  violate  the  rules  of  private  international  law."  As 
has  been  well  said  by  a  learned  judge,''  speaking  of  the  con- 
flicting authorities  upon  a  point  in  the  conflict  of  laws:  "  They 
have  attempted  to  go  too  far;  to  define  and  fix  that  which  in  the 
nature  of  things  cannot  be  defined  and  fixed.  They  seem  to 
have  forgotten  that  they  wrote  on  a  question  which  touched  the 
comity  of  nations,  and  that  that  comity  is,  and  ever  must  be, 
uncertain.  That  it  must  necessarily  depend  upon  a  variety  of 
circumstances,  which  cannot  be  reduced  within  any  certain 
rule.  That  no  nation  will  suffer  the  laws  of  another  to  inter- 
fere with  her  own  to  the  injury  of  her  citizens;  that  whether 
they  do  or  not  must  depend  upon  the  condition  of  the  country 
in  which  the  foreign  law  is  sought  to  be  enforced;  the  particular 
nature  of  her  legislation,  her  policy,  and  the  character  of  her 
institutions.  That  in  the  conflict  of  laws  it  must  be  often  a 
matter  of  doubt  which  should  prevail ;  and  that  whenever  that 
doubt  does  exist,  the  court  which  decides  will  prefer  the  law  of 
its  own  country  to  that  of  the  stranger." 

§  7.  Second  Exception  —  Injustice  or  Detriment  to  People 
of  the  Forum.  —  This  exception,  like  most  of  the  others,  is  but 
a  branch  of  the  first,  but,  by  reason  of  its  frequency  and  impor- 
tance, is  treated  separately. 

It  is  natural,  and  not  at  all  to  be  reprobated,  that  the  courts  of 
the  forum  should  refuse  to  enforce  a  foreign  law,  if  to  do  so  would 
result  in  injustice  to  their  own  people.  The  object  of  the  enforce- 
ment of  a  foreign  law  in  any  case  is  to  mete  out,  as  far  as  possible, 
exact  justice  to  all  concerned,  as  well  as  to  give  due  effect  to  the 

«  Pemiegart;.  State,  87  Tenii.  244,  2  L.  R.  A.  703,  706  ;  Cross  v.  U.  S. 
Trust  Co.,  131  N.  Y.  330,  343  ;  HolJis  r.  Seminary,  95  N.  Y.  166. 

">  Porter,  J.,  in  Saul  v  His  Creditors,  5  Mart.  K.  s.  (La.)  560,  16  An 
Dec.  212,  225. 


§  7  SECOND  EXCEPTION  —  RESIDENTS.  13 

laws  of  other  States.  But  the  first  and  most  important  of  these 
objects  fails  altogether  when  the  enforcement  of  the  proper  law 
would  result  in  injustice  and  loss  to  innocent  citizens  of  the 
forum.  As  between  the  latter  and  strangers,  it  is  not  remark- 
able that  the  courts  should  elect  in  a  close  case  to  decide  the 
matter  in  accordance  with  the  lex  fori,  thus  giving  their  fellow 
citizens  the  advantages  conferred  upon  them  by  the  law  under 
which  they  live  and  ordinarily  transact  their  business.  The 
observance  of  comity  towards  other  States  cannot  reasonably  be 
expected  at  the  expense  of  injustice  to  residents  of  the  forum, 
for  whose  benefit  the  courts  and  the  law  are  primarily  insti- 
tuted. The  existence  of  this  exception  to  the  enforcement  of 
the  "proper  law"  is  beyond  dispute,  though  its  limits  are  not 
yet  precisely  defined.^ 

A  dictum  in  a  leading  Louisiana  case*^  will  serve  to  illustrate 
the  operation  of  this  exception.  In  that  case  the  court,  argv^ 
endo,  supposes  a  person  domiciled  in  Spain  to  enter  into  a  con- 
tract with  a  citizen  of  Louisiana,  the  Spanish  citizen  being 
twenty-three  years  old.  By  the  law  of  Spain  (lex  domicilii)  he 
does  not  become  of  age  until  he  is  twenty-five.  By  the  law  of 
Louisiana  he  is  of  age  at  twenty-one,  and  can  make  a  binding 
contract.     Suit  is  brought  on  the  contract  in  Louisiana  by  the 

1  Green  v.  Van  Buskirk,  5  Wall.  307,  312 ;  Pennoyer  r.  NeflF,  95  U.  S. 
714,  723;  Cole  v,  Cnnningham,  133  U.  S.  107,  126  ;  Bamett  v.  Kinney,  147 
U.  S.  476 ;  Williams  v.  Dry  Goods  Co.,  4  Okl.  145,  43  Pac.  1148  ;  Robinson 
V.  Queen,  87  Tenn.  445,  3  L.  R.  A.  214  ;  Bentley  r.  Whittemore,  19  N.  J.  Eq. 
462,  97  Am.  Dec.  671 ;  May  v.  Bank,  ]22  111.  551,  13  N.  E.  806  ;  Matthews 
V.  Lloyd,  89  Ky.  625,  13  S.  W.  106,  107;  Marshall  r.  Sherman,  148  N.  Y. 
9,  10,  29,  42  N.  E.  419  ;  Armstrong  v.  Best,  112  N,  C.  59,  17  S.  E.  14,  15; 
Homthall  v.  Burwell,  109  N.  C.  10,  13  S.  E.  721,  722;  Frank  v.  Bobbitt, 
155  Mass.  112,  29  N.  E.  209;  Dial  v.  Gary,  14  S.  C.  573,  37  Am.  Rep.  377, 
738;  Catlin  v.  Plate  Co.,  123  Ind.  477,  24  K  E.  250,  8  L.  R.  A.  62,  63; 
Gilman  t;.  Ketcham,  84  Wis.  60,  54  N.  W.  395;  Egbert  v.  Baker,  58  Conn. 
319,  20  Atl.  466,  467;  Sturtevant  v.  Armsby  Co.,  66  N.  H.  557,  23  Atl.  368 ; 
Chafee  v.  Bank,  71  Me.  514,  36  Am.  Rep.  345,  347-8 ;  Fuller  v.  Steiglitz, 
27  Ohio  St.  355,  22  Am.  Rep.  312,  318;  Long  v.  Girdwood,  150  Penn.  St. 
413,  24  Atl.  711,  712,  23  L.  R.  A.  33,  note.  But  see  Atherton  Co.  v.  Ives, 
20  Fed.  894,  897. 

2  Saul  V.  His  Creditors,  17  Mart.  569,  16  Am.  Dec.  212,  226.  See  aHat 
Baldwin  v.  Gray,  4  Mart.  N.  s.  (La.)  192,  16  Am.  Dec.  169,  170. 


14  EXTENT   OF   SECOND   EXCEPTION.  §  8 

Louisiana  citizen.  The  defendant  urges  the  law  of  his  domicil 
as  fixing  his  age  of  majority  (which  is  a  status)  and  his  conse- 
quent capacity  to  make  a  binding  contract.^  The  court,  while 
alleging  (erroneously)  the  general  operation  of  the  lex  domicilii 
in  such  cases,  insists  that  the  foreign  law  must  yield  in  this 
instance  to  the  lex  fori,  as  its  enforcement  would  work  an  in- 
justice to  the  Louisiana  citizen  who  could  not  be  supposed  to 
be  acquainted  with  the  laws  of  Spain. 

But  in  order  for  this  exception  to  operate,  the  enforcement  of 
the_£roper  law  TTvnRt__rpgiilt  in  injtistire  tft  thft  citizen  of  the 
foruBU—Tho  more  fact  that  nuch  unfufCbiiieuL  would  aubj«ct  him 
fri  !i  jirt  liability;  vvhirh  hr  might  escnpp  w^ra  thfi_[ftY  fori  to 
operate^will  not  suffice. 

Again,  it  is  a  generally  accepted  principle  that  a  transfer  of 
personalty  situated  abroad  is  governed  as  to  its  validity  and 
effect  by  the  law  of  the  place  Avhere  the  transfer  is  made  (lex 
loci  contractus).*  But  this  rule  will  not  usually  be  permitted 
to  operate  in  the  State  where  the  personalty  is  situated  in  cases 
where  an  injustice  will  thereby  be  done  the  people  of  the  latter 
State;  for  example,  attaching  creditors  of  the  assignor.  The 
lex  fori  will  be  substituted.* 

So,  in  a  Tennessee  case,'  a  married  woman,  domiciled  in  Ken- 
tucky, made  there  a  note  as  surety  for  her  husband,  which  note 
was  also  payable  there.  Suit  was  brought  against  her  on  the 
note  in  Tennessee.  By  the  law  of  Kentucky  a  married  woman 
could  bind  herself  by  such  a  contract ;  by  the  law  of  Tennessee 
she  could  not.  The  court  refused  to  apply  the  Tennessee  law, 
saying:  ''If  this  were  a  suit  against  a  married  woman,  a  citizen 
of  this  State,  on  a  contract  made  out  of  the  State,  there  would 
be  much  force  in  the  insistence  of  the  defendant." 

§  8.  Extent  of  Second  Exception.  —  The  limits  of  this  ex« 
ception  are  not  as  yet  very  definitely  settled.     If  there  be  only 

«  See  post,  §§  71,  72.  «  Post,  §§  128  et  seq. 

6  Post,  §  129  ;  May  v.  Bank,  122  111.  551,  13  N.  E.  806  ;  Bentley  v. 
Whittemore,  19  N.  J.  Eq.  462,  97  Am.  Dec.  671 ;  Frank  t>.  Bobbitt,  155  Mass. 
112,  29  N.  E.  209;  Edgerly  v.  Bush,  81  N.  Y.  199;  Hornthall  v.  Burwell, 
109  N.  C.  10,  13  S.  E.  721,  722  ;  Crapo  v.  Kelly,  16  Wall.  610,  622. 

«  Robinson  v.  Queen,  87  Tenn.  445,  H  S.  W.  38,  3  L.  R.  A.  214. 


§  8  EXTENT   OF   SECOND   EXCEPTION.  15 

one  party  who  complains  of  the  injustice  done  him  by  the  en- 
forcement  of  a  proper  foreign  law,  and  he  is  a  citizen  of  the 
forum,  the  lex  fori  will  generally  be  substituted  in  the  place  of 
the  foreign  law.^  And  the  same  is  true  where  there  are  several 
who  thus  complain,  all  being  citizens  of  the  forum.' 

And  it  has  been  held,  where  the  complaining  parties  were 
partners^  some  of  whom  were  citizens  of  the  forum  and  some 
citizens  of  another  State,  that  the  privileges  of  the  lex  fori  ac- 
cruing to  the  citizens  of  the  forum  will  enure  also  to  the 
benefit  of  those  partners  who  were  citizens  of  other  States,  be- 
cause they  were  jointly  interested  and  their  interests  could  not 
be  separated.' 

It  has  been  suggested  that,  as  between  the  States  of  this 
Union,  to  so  discriminate  against  the  citizens  of  other  States 
and  in  favor  of  the  citizens  of  the  forum  contravenes  the  pro- 
vision of  the  federal  constitution  which  declares  that  the  citizens 
of  each  State  shall  be  entitled  to  all  privileges  and  immunities 
of  citizens  of  the  several  States.*  But  the  opposite  is  too  well 
established  to  be  disputed.  This  constitutional  provision  applies 
to  fundamental  and  universal  rights,  not  to  special  privileges. 

There  seems  to  be  a  tendency  in  some  of  the  decisions  to  ex- 
tend the  principle  of  comity,  as  between  the  several  States  of 
the  Union,  beyond  the  limits  marked  out  by  strict  international 
law.  These  decisions  make  the  distinction  already  adverted  to 
between  citizens  of  the  forum  and  citizens  of  foreign  countries, 
but  place  the  citizens  of  other  States  of  the  Union  upon  the 
same  footing  as  residents  of  the  forum,  giving  them  also  the 
benefit  of  the  domestic  law.'    But  the  weight  of  opinion  and 

1  May  V.  Bank,  122  111.  551,  13  N.  E.  806  ;  Matthews  v.  Lloyd,  89  Ky. 
625,  13  S.  W.  106;  Frank  v.  Bobbitt,  155  Mass.  112  ;  Edgerly  v.  Bush,  81 
N.  Y.  199  ;  Chafee  v.  Bank,  71  Me.  514,  36  Am.  Rep.  345,  349  ;  Crapo  v. 
Kelly,  16  Wall.  610,  622. 

2  Faulkner  v.  Hyman,  142  Mass.  53,  55. 

3  Faulkner  v.  Hyman,  142  Mass.  53,  55-56.  See  Bentley  v.  "Whittemore, 
19  N.  J.  Eq.  462,  97  Am.  Dee.  671,  672,  674. 

*  Chafee  v.  Bank,  71  Me.  514,  36  Am.  Rep.  345,  349.  This  case  itsell 
:jerely  makes  the  suggestion  to  refute  it.  See  also  Athertou  Co.  v.  Ives,  20 
Fed.  894,  897  ;  Sturtevant  v.  Armsby  Co.,  66  N.  H.  557,  23  Atl.  368. 

6  Sturtevant  v.  Armsby  Co.,  66  N.  H.  557,  23  Atl.  368;  Hibernia  Bank 


16  EXTENT  OF  SECOND  EXCEPTION.  §  8 

reason  seems  to  be  in  favor  of  confining  the  privilege  of  the  lex 
fori  to  citizens  of  the  forum,  so  far  as  the  operation  of  this  ex- 
ception is  concerned.® 

However  it  may  be  as  to  putting  citizens  of  the  forum  and  of 
third  States  (within  the  Union)  on  an  equal  footing,  opinion 
has  been  divided  as  to  whether  it  is  proper  to  exclude  citizens 
of  the  State  whose  law  is  properly  applicable  ;  it  being  said 
that  in  their  favor  their  own  law  should  not  be  set  aside  and 
substituted  by  the  lex  fori,^  unless  the  settled  policy  of  the 
forum  (independently  of  citizenship)  requires  its  substitution.* 

Another  question  arises  which  involves  the  scope  of  this  ex- 
ception. Does  it  apply  only  to  citizens  of  the  forum,  or  should 
it  be  extended  to  those,  not  citizens,  who  are  domiciled  there, 
or  even  to  those  who  are  casually  present  there  ?  As  between 
the  States  of  this  Union,  if  the  party  upon  whom  the  foreign 
law  operates  injuriously  is  a  citizen  of  the  United  States,  he 
must  be  held  a  citizen  of  the  forum  if  he  is  domiciled  there.' 
But  if  he  be  not  domiciled  there,  or  if  he  be  an  alien,  or  if  the 

r.  Lacombe,  84  N.  Y.  367;  Catlin  v.  Silver  Plate  Co.,  123  Ind.  477,  24  X.  E. 
250,  8  L.  R.  A.  62,  65  ;  First  Nat  Bank  v.  Walker,  61  Conn.  154,  23  Atl, 
696  ;  Oilman  v.  Ketchum,  84  Wis.  60,  54  N.  W.  395 ;  Fuller  v.  Steiglitz,  27 
Ohio  St.  355,  22  Am.  Rep.  312,  318,  319;  Milne  v.  Moreton,  6  Binn.  (Penn.) 
353,  6  Am.  Dec.  466.  See  Atherton  Co.  v.  Ives,  20  Fed.  894,  897,  in  which 
the  court  seems  inclined  to  place  even  citizens  of  foreign  countries  upon  the 
same  footing  with  citizens  of  the  forum. 

«  The  first  exception  operates,  regardless  of  citizenship.  See  Douglas  v. 
Bank,  97  Tenn.  133,  36  S.  W.  874,  876  ;  Moore  v.  Church,  70  la.  208,  59  Am. 
Rep.  439,  441 ;  Barth  v.  Backus,  140  N.  Y.  230  ;  Paine  v.  Lester,  44  Conn. 
196,  26  Am.  Rep,  442.  The  last  two  are  cases  of  involuntary  assignments 
under  insolvency  laws.  Such  assignments  have  no  exterritorial  effect.  See 
post,  §  137. 

T  Barnett  v.  Kinney,  147  U.  S.  476,  481 ;  Cole  v.  Cunningham,  133  U.  S. 
107,  129 ;  Bagby  v.  R.  R.  Co.,  86  Penn.  St.  291  ;  Bacon  v.  Home,  123  Penn. 
St.  452,  453,  16  Atl.  794;  Oilman  v.  Ketchum,  84  Wis.  60,  54  N.  W.  395  ; 
Faulkner  r.  Hyman,  142  Mass.  53,  55;  May  v.  Wannemacher,  111  Mass. 
202,  209 ;  Woodward  v.  Brooks,  128  111.  222,  20  N.  E.  685;  In  re  Dalpay,  41 
Minn.  532,  43  N.  W.  564,  566.  But  see  Barth  «;.  Backus,  140  N.  Y.  230,  29 
N.  E.  209 ;  Hibemia  Nat.  Bank  v.  Lacombe,  84  N.  Y.  367. 

«  See  Moore  v.  Church,  70  la.  208,  59  Am.  Rep.  439,  441.  See  post, 
§S  134,  138,  where  this  question  is  more  fully  discussed. 

•  U.  S.  Const.  Amendment  XIV. 


§  9        THIRD  EXCEPTION  —  CONTRA  BONOS  MORES.  17 

suit   be  instituted   in   a  foreign   country,    the   point   becomes 
important. 

It  is  believed  that  the  exception  comprises  within  its  scope 
all  those  for  whose  protection  and  benefit  the  lex  fori  is  enacted, 
including  not  only  citizens,  but  aliens  domiciled  there,  and 
sometimes  persons  resident  there  for  a  temporary  purpose.^® 

§  9.  Third  Exception  —  Proper  Foreign  Law  Contra  Bonos 
Mores.  —  This  exception  also  is  merely  a  particular  application 
of  the  first.  There  are  certain  things  which  are  inherently 
vicious,  demoralizing,  and  antagonistic  to  the  general  principles 
of  morality  which  form  the  basis  of  civilized  societies.  It  is 
a  most  important  part  of  the  policy  of  every  civilized  State  that 
the  law  should  prohibit  or  discourage  such  things  as  far  as 
practicable.  They  are  generally  condemned  by  every  system 
of  municipal  law. 

When  we  come  to  examine  this  principle,  as  it  applies  in 
private  international  law,  we  find  that  there  are  certain  trans- 
actions which,  though  valid  in  some  barbarous  or  semi-civilized 
States,  and  perhaps  even  in  one  or  two  that  are  civilized,  are 
reprobated  by  the  municipal  law  of  most  countries,  as  immoral  ''0  ' 
in  fact  or  in  tendency.  Such,  for  example,  are  polygamous  mar-  } 
riages;  marriages  between  parent  and  child,  grandparent  and 
grandchild,  or  brother  and  sister;  contracts  to  reward  crime; 
contracts  for  the  price  of  illicit  intercourse ;  contracts  to  corrupt 
or  evade  the  due  administration  of  justice,  to  defraud  or  corrupt 
public  agents;  and  in  general  all  transactions  which  in  their 
nature  are  founded  in  moral  turpitude,  and  are  inconsistent 
with  the  good  order  and  substantial  interests  of  the  forum. 
Such  transactions  will  always  be  discountenanced  by  the  lex 
fori,  regardless  of  the  character  stamped  upon  them  by  the  law 
which  should  properly  govern  them.^ 

1"  Woodworth  V.  Spring,  4  Allen  (Mass.),  321;  Bank  v.  Williams,  46  Miss. 
618 ;  Hibernia  Nat.  Bank  v.  Lacombe,  84  N.  Y.  367 ;  Freeman's  Appeal,  68 
Conn.  533,  37  Atl.  420.  See  Donovan  v.  Pitcher,  .53  Ala.  411,  25  Am.  Rep. 
634  ;  Hilton  v.  Guyot,  159  U.  S.  113. 

1  Story,  Confl.  L.  §  258;  Oscanyon  v.  Arms  Co.,  103  U.  S.  261;  Green- 
wood V.  Curtis,  6  Mass.  358,  4  Am.  Dec.  145,  147-9  ;  Armstrong  v.  Toler,  11 
Wheat.  258  ;  Merchants'  Bank  v.  Spalding,  12  Barb,  (N.  Y.)  302  ;  Madrazzo  v. 
Willes,  3  Barn.  &  Aid.  353. 

2 


18  THIRD   EXCEPTION  —  CONTRA   BONOS   MORES.        §  9 

The  same  principle  will  also  apply  where  a  contract  is  made 
for  the  purpose  of  giving  aid  to  the  enemies  of  a  country  with 
which  the  forum  is  in  amity ;  '  or  to  a  contract  tending  to  the 
bribery  and  corruption  of  the  officers  of  a  foreign  government.' 

Under  this  head  may  likewise  be  placed  those  transactions 
which  are  so  detrimental  to  the  interests  of  the  forum  itself, 
and  disclose  such  a  disregard  for  the  public  weal  as  to  amount 
to  immorality.  Of  this  character  are  contracts  with  alien  ene- 
mies, contracts  to  smuggle  goods  into  the  forum,  or  to  evade 
or  violate  its  revenue  laws.*  Yet,  strange  to  say,  the  rule  has 
been  laid  down  otherwise  in  cases  where  the  transaction  is  a 
fraud  upon  the  revenue  laws  of  another  State,  upon  the  paltry 
and  shortsighted  theory  that  one  State  has  no  concern  with  the 
revenue  laws  of  another,  and  that  the  latter  must  enforce  its  own 
laws.  "  Sound  morals  would  seem  to  point  to  a  very  different 
conclusion."  ' 

So  also,  if  an  attempt  be  made  to  evade  the  "proper  law," 
a  fraud  upon  that  law  is  committed,  which  the  courts  of  that 
State  at  least  will  not  in  general  tolerate.  They  will  substitute 
the  law  which  should  have  governed  had  there  been  no  such 
fraud.  The  validity  of  a  transaction  cannot  be  secured  by  ap- 
parently subjecting  it  to  a  law  by  which  it  is  not  properly 
governed.' 

Thus,  in  Mortg.  Co.  v.  Jefferson,^  the  plaintiffs,  who  resided 

'  Eennett  v.  Chambers,  14  How.  38  (a  contract  to  famish  aid  to  Texans 
against  Mexicans). 

»  Oscanyon  v.  Arms  Co.,  103  U.  S.  261, 

*  Armstrong  v.  Toler,  11  Wheat.  258  ;  Griswold  v.  Waddington,  16  Johns. 
(N.  Y.)  438;  Ivey  i;.  Lolland,  42  Miss.  444,  2  Am.  Rep.  606. 

6  Story,  Confl,  L.  §§  245  et  seq.  ;  Ivey  v.  Lolland,  42  Miss.  444,  448, 
2  Am.  Rep.  606 ;  Merchants'  Bank  v.  Spalding,  9  N.  Y.  53,  63. 

•  See  Story,  Confl.  L.  §  106 ;  Mortg.  Co.  v.  Jefferson,  69  Miss.  770,  12 
So.  464,  465  ;  Hinds  v.  Brazealle,  2  How.  (Miss.)  837,  32  Am.  Dec.  307  ; 
Gardner  v.  Lewis,  7  Gill  (Md.),  378,  392  ;  Arhuckle  v.  Reaume,  96  Mich.  243, 
55  N.  W.  808 ;  Pennegar  v.  State,  87  Tenn.  244,  2  L.  R.  A.  703,  704  ;  Com. 
V.  Lane,  113  Mass.  458,  471,  18  Am.  Rep.  509;  "West  Cambridge  i-.  Lexing- 
ton, 1  Pick.  (Mass.)  506,  11  Am.  Dec.  231  ;  Akers  v.  Demond,  103  Mass.  318, 
324;  Kinney  v.  Com.,  30  Gratt.  (Va.)  858;  SUte  v.  Kennedy,  76  N.  C.  251, 
22  Am.  Rep.  683. 

7  69  Miss.  770,  12  So.  464,  465. 


§  9         THIRD  EXCEPTION  —  CONTRA   BONOS  MORES.  19 

in  Tennessee,  borrowed  money  of  the  defendant,  a  New  York 
corporation,  securing  the  loan  by  a  deed  of  trust  upon  land  in 
Mississippi.  The  notes  were  made  in  Tennessee  and  payable  in 
New  York,  and  were  usurious  by  the  laws  of  both  States,  but 
not  by  the  law  of  Mississippi.  The  deed  of  trust  recited  (con- 
trary to  the  fact)  that  it  and  the  notes  were  made  in  Mississippi, 
where  they  were  not  usurious,  and  that  they  were  to  be  con- 
strued according  to  the  laws  of  that  State.  But  the  Mississippi 
court  disregarded  this  recital  altogether,  holding  that  the  laws 
of  a  State  and  access  to  its  courts  are  not  the  subject  of  contract. 

There  is  an  exception,  however,  to  this  last  principle  in  the 
case  of  marriage.  It  is  of  the  utmost  importance  to  the  very 
existence  of  society  that  its  well-spring,  the  marriage  relation, 
should  be  kept  pure  and  unpolluted.  The  courts  strain  every 
nerve  to  uphold  a  marriage,  not  in  itself  immoral.  Hence,  if 
citizens  of  a  State  leave  it  to  contract  elsewhere  a  marriage,  for- 
bidden by  the  law  of  their  domicil  but  valid  where  contracted, 
and  afterwards  return  to  their  domicil,  though  this  is  an  evasion 
of  the  domiciliary  law,  the  marriage  will  be  upheld  in  all  States 
other  than  their  domicil.^ 

Upon  the  question  whether  the  courts  of  the  domicil  will  up- 
hold such  a  marriage,  the  authorities  are  much  divided.  Many 
influential  courts  stand  in  favor  of  upholding  the  marriage  at 
all  hazards,  even  though  it  be  contracted  in  fraud  and  evasion  of 
the  home  law,  deeming  this  general  policy  superior  to  all  special 
policies  of  the  domicil  and  forum.'  Others,  as  influential,  make 
the  question  turn  upon  the  relative  importance  of  the  policies 
involved.  While  not  lightly  setting  aside  a  marriage  valid 
where  contracted,  neither  will  they  lightly  set  aside  important 
domestic  policies  closely  relating  to  the  moral  life  of  the  people. 
Under  this  line  of  cases  the  relative  importance  of  the  policies 

'  See  post,  §  73 ;  Dickson  v.  Dickson,  1  Yerg.  (Tenn.)  110,  24  Am.  Dec. 
444. 

•  Medway  v.  Needham,  16  Mass.  157,  6  Am.  Dec.  131 ;  Com.  v.  Putnam, 
1  Pick.  (Mass.)  136;  Com.  v.  Lane,  113  Mass.  458,  18  Am.  Rep.  509  ;  Put- 
nam V.  Putnam,  8  Pick.  (Mass.)  433;  Van  Voorhis  v.  Briutnall,  86  N.  Y.  18. 
40  Am.  Rep.  505;  Stevenson  v.  Gray,  17  B.  Mon.  (Ky.)  193;  Thorp w. Thorp, 
90  N.  Y.  602. 


20  THIRD   EXCEPTION  —  CONTRA  BONOS   MORES.         §  9 

involved  is  the  criterion,  and  the  result  in  a  particular  case  will 
depend  upon  the  weight  attached  by  the  particular  court,  in  a 
sound  judicial  discretion,  to  the  policy  indicated  by  the  domi- 
ciliary legislation.  And  this,  it  is  believed,  is  the  better 
view.^° 

There  are  some  transactions  which,  though  deemed  immoral 
in  some  States,  cannot  be  said  to  be  immoral  by  the  laws  of 
nature,  this  being  evidenced  by  the  fact  that  some  fully  civil- 
ized nations  do  not  so  consider  them.  To  this  head  belong 
marriages  between  persons  related  to  each  other  by  ties  of  con- 
sanguinity or  affinity. 

All  civilized  States  reprobate  marriages  between  persons  in 
the  direct  lineal  line  of  consanguinity,  and  those  contracted  be- 
tween brother  and  sister. ^^  Such  marriages  therefore,  though 
celebrated  in  a  barbarous  country  where  they  are  valid,  will  gen- 
erally be  adjudged  void  in  all  civilized  States,  as  being  contra 
bonos  mores.^^  But  when  we  proceed  further  than  this,  to  mar- 
riages between  uncle  or  aunt  and  niece  or  nephew,  between 
brother-in-law  and  sister-in-law,  between  first  cousins,  etc.,  we 
find  there  is  no  common  opinion  in  Christendom  upon  the  mo- 
rality of  such  marriages.  Some  States  prohibit  them  while 
others  permit  them.  It  cannot  then  be  said  in  such  case  that 
the  marriage  is  universally  or  even  generally  deemed  immoral 
throughout  the  civilized  world.  The  fact  is  otherwise.  Hence 
in  these  latter  cases  the  courts  will  not  feel  at  liberty  to  depart 
from  the  "  proper  law,"  even  though  by  the  lex  fori  such  a  mar- 
riage would  be  disapproved  and  declared  void.  If  valid  by  its 
proper  law,  it  will  be  valid  everywhere.^* 

w  Pennegar  r.  State,  87  Tenn.  244,  10  S.  W.  305,  2  L.  R.  A.  704,  705  ; 
Kinney  v.  Cora.,  30  Gratt.  (Va.)  858;  State  v.  Kennedy,  76  N.  C.  251,  22 
Am.  Rep.  683.     See  post,  §  73,  where  this  whole  topic  is  examined  at  large. 

"  Story,  Confl.  L.  §  114  ;  Wightman  v.  Wightman,  4  Johns.  Ch.  (N.  Y.) 
343,  349;  Sutton «;.  Warren,  10  Met.  (Mass.)  451,  452. 

12  Story,  Confl.  L.  §  114. 

^  Story,  Confl.  L.  §  114  ;  Greenwood  v.  Curtis,  6  Mass.  358,  379,  4  km 
Dec.  145 ;  Med  way  v.  Needham,  16  Mass.  157,  6  Am.  Dec.  131  ;  Com. 
V.  Lane,  113  Mass.  458,  463,  18  Am.  Rep.  509;  Wightman  v.  Wightman, 
4  Johns.  Ch.  (N.  Y.)  343,  349;  Kinney  v.  Com.,  30  Gratt.  (Va.)  858  ;  State 
V.  Kennedy,  76  N.  C.  251,  22  Am.  Rep.  683  ;  Stevenson  v.  Gray,  17  B.  Mon. 


f  10      FOURTH  EXCEPTION  —  PENAL  LAWS.        21 

Another  illustration  of  the  principle  that  private  international 
law  will  not  condemn  as  immoral  transactions  which  are  not  so 
considered  by  all,  or  at  least  the  great  majority,  of  the  civilized 
States  of  the  world,  is  to  be  found  in  transactions  based  upon 
the  institution  of  slavery.  Thus  a  note  given  in  payment  for 
slaves  or  for  slave  hire,  payable  in  States  where  slavery  is  law- 
ful, will  be  enforced  even  in  States  which  condemn  or  do  not 
recognize  the  institution." 

Neither  are  Sunday  laws  treated  as  rules  of  positive  morality, 
certainly  not  by  all  civilized  nations.  Hence  contracts  entered 
into,  or  to  be  performed,  on  Sunday,  and  valid  by  their  proper 
law,  will  be  enforced  even  in  States  whose  laws  prohibit  and  in- 
validate Sunday  contracts.^* 

§  10.  Fourth  Bzception  —  Proper  Foreign  Iiaw  Penal  in  its 
Nature.  —  It  is  a  well-settled  principle  of  private  international 
law  that  the  penal  laws  of  one  State  will  have  no  exterritorial 
effect  in  other  States.  Each  State  must  look  after  the  punish- 
ment of  its  own  people  for  offences  against  its  laws.  Other 
States  cannot  and  will  not  undertake  to  aid  it  in  these  matters 
further  than  to  surrender  a  fugitive  from  justice  under  extra- 
dition treaties  or  laws.  This  general  principle  is  universally 
admitted.^ 

(Ky. )  193.     The  proper  law  governing  the  validity  of  marriages  will  be  dis- 
cussed hereafter.     Post,  §§  75,  76  et  seq. 

^*  Greenwood  v.  Curtis,  6  Mass.  358,  4  Am.  Dec.  145 ;  Bouudtree  v.  Baker, 
52  111.  241,  4  Am.  Rep.  597  ;  Osbom  v.  Nicholson,  13  Wall.  654.  It  is  other- 
wise as  to  the  status  of  the  slave  himself.  See  Com.  v.  Aves,  18  Pick.  (Mass.) 
193;  Donovan  v.  Pitcher,  53  Ala.  411,  25  Am.  Rep.  634. 

"  McKee  v.  Jones,  67  Miss.  405,  7  So.  348 ;  Brown  v.  Browning,  15  R.  I. 
422,  7  Atl.  403  ;  Swann  v.  Swann,  21  Fed.  299.  For  the  proper  law  governing 
the  validity  of  Sunday  contracts,  see  post,  §§  168,  175. 

1  The  Antelope,  10  Wheat.  66,  123  ;  Huntington  v.  Attrill,  146  U.  S.  657, 
666  ;  Com.  v.  Green,  17  Mass.  515,  539-540  ;  Com.  v.  Lane,  113  Mass.  458, 
470,  18  Am.  Rep.  509  ;  Coffing  v.  Dodge,  167  Mass.  231,  232,  45  N.  E.  928  ; 
Van  Voorhia  v.  Brintnall,  86  N.  Y.  18,  28,  36,  40  Am.  Rep.  505  ;  Sims  v. 
Sims,  75  N.  Y.  466;  Succession  of  Hernandez,  46  La.  Ann.  962,  15  So.  461, 
24  L.  R.  A.  831,  842;  Marshall  v.  Sherman,  148  N.  Y.  9,  20,  42  N,  E.  419, 
Guerney  v.  Moore,  131  Mo.  650,  32  S,  W.  1132,  1138  ;  Dickson  v.  Dickson, 
1  Yerg.  (Tenn.)  110,  24  Am,  Dec.  444  ;  St.  Sure  v.  Lindsfelt,  82  Wis.  346y 
19  L.  R.  A.  515,  519;  Midland  Co.  v.  Broat,  50  Minn.  562,  52  N.  W.  972 


22  FOUBTH   EXCEPTION  —  PENAL   LAWS.  §  10 

But  the  authorities  by  no  means  agree  as  to  the  meaning  to 
be  attached  to  the  term  ''penal,"  in  the  international  sense  of 
the  word.  In  Huntington  v.  Attrill,*  the  Supreme  Court  of  the 
United  States  has  laid  down  the  following  criterion:  ''The 
question  whether  a  statute  of  one  State,  which  in  some  ^spects 
may  beTcalleT^jSi^j  is  a  pelial  law  in  the  international  sense, 
so  that  it  cannot  be  enforced  in  the  courts  of  another  State,"3e- 
peiids  upon  the  question  whether  its  purpose  is  to  punish_^JL. 


offence  against  t\iQ  public  justice  of  the  State,  or  to  afford  a  pri=_ 
vate  remedy  to  a  person  injured  by  the  wrongful  act,"  the  court 
holding  that,  in  the  first  case,  the  law  has  no  extraterritorial 
effect,  being  penal,  while  in  the  second  case,  being  remedial, 
it  may  be  given  exterritorial  operation.' 

First  Nat.  Bank  v.  Price,  33  Md.  487,  3  Am.  Rep.  204 ;  Dale  v.  R.  R.  Co.,  57 
Kan.  601,  47  Pac.  521.  Sufficient  reasons  for  the  principle  may  be  found  in 
the  divergent  notions  of  right  and  justice  current  in  different  countries,  the 
differences  existing  in  the  forms  of  administering  justice,  and  the  inherent 
right  of  a  sovereign  State  to  control  all  persons  within  its  limits  and  to  judge 
them  by  its  own  laws.     See  Com.  v.  Green,  17  Mass.  515,  539. 

«  146  U.  S.  657,  666,  673.  See  also  Boyce  v.  Railway  Co.,  63  la.  70,  18 
N.  W.  673. 

•  The  ruling  in  this  case  is  of  such  importance  that  it  is  deemed  wise  to 
bestow  more  than  a  passing  glance  upon  it.  The  decision,  in  so  far  as  it 
discusses  the  general  nature  of  penal  laws  and  their  exterritorial  effect,  is  a 
dictwn.  The  only  question  before  the  court  was  whe£RefT~Judgment  ren- 
dered in  one  State  upon  a  statute  of  that  State  giving  a  private  punitive 
remedy,  could  be  enforced  in  another  State,  it  being  denied  enforcement  on 
the  ground  that  the  statute  under  which  the  judgment  was  recovered  was 
penal,  and  not  remedial.  There  is  a  great  difference  between  the  enforcement 
in  one  State  of  a  judgment  obtained  in  another,  though  under  a  penal  statute, 
and  the  enforcement  in  one  State  of  an  outstanding  claim  (not  reduced  to  a 
judgment)  arising  under  the  penal  statute  of  another  State.  The  reduction  of 
the  claim  to  a  judgment  deprives  it  in  large  measure  of  its  penal  character. 
The  general  eflfect  of  a  foreign  penal  statute  therefore  was  not  before  the 
court. 

The  facts  of  the  case  were  as  follows :  A  New  York  statute  made  the  offi- 
cers of  a  corporation,  who  signed  and  recorded  false  certificates  of  the  amount 
of  its  capital  stock,  liable  for  all  its  debts.  The  statute  was  violated  by  an 
officer  of  a  certain  New  York  corporation,  and  a  judgment  was  recovered  in 
New  York  against  him  thereunder.  Action  being  brought  upon  the  judgment 
in  Maryland,  its  courts  held  that  the  New  York  statute  was  a  penal  statute, 
and  refused  to  enforce  the  judgment.    On  appeal  to  the  Supreme  Court  of  the 


§  10  FOURTH   EXCEPTION  —  PENAL  LAWS.  23 

A  better  test,  however,  would  seem  to  be  that  indicated 
by  the_ordi.Dary  meaning  attached  to  the  phrase  "penal '^  or 
"  penalty."  A  person  who  unlawfully  injures  anotner  is  justly" 
bound  to  reimburse  him  to  the  extent  of  the  damage  inflicted; 
and  in  a  case  not  provided  for  by  the  common  law,  it  may  be 
provided  for  by  statute.  K  the  law  places  any  additional  burden 
upon  the  wrongdoer  by  reason  of  his  wrongful  act,  to  this  extent 

United  States,  under  the  "fall  faith  and  credit"  clause  of  the  federal  consti- 
tution, that  court  held  that  it  had  jurisdiction  to  determine  whether  full  faith 
and  credit  had  been  given  in  Maryland  to  the  New  York  judgment,  and,  in 
order  to  determine  that  question,  that  it  had  the  right  to  decide  whether  the 
statute  in  dispute  was  of  a  penal  character.  As  we  have  seen,  it  was  not 
necessary  to  decide  this  question.  As  a  matter  of  fact,  the  court  was  clearly 
correct  in  deciding  that  the  particular  statute  in  question  was  not  penal,  but 
remedial,  as  will  be  shown  presently.  But  the  criterion  proposed  for  the  de« 
termination  of  the  question  whether  a  statute  is  penal,  with  all  respect,  seems 
to  be  the  result  of  fallacious  reasoning. 

The  court's  argument  is  based  upon  the  fact  that  municipal  law  distin- 
guishes between  a  crime  and  a  civil  wrong  (even  where  the  law  gives  punitive 
damages  to  the  party  injured  by  the  prohibited  act).  It  is  submitted  that  to 
thus  reason  from  the  rules  of  municipal  law  to  those  of  private  international 
law  is  apt  to  lead  to  erroneous  conclusions.  The  two  systems  are  based  on 
different  principles.  The  former  is  founded  in  positive  regiilation ;  the  latter, 
in  international  comity.  In  enforcing  the  rules  of  municipal  law,  the  courts 
seek  to  carry  out  the  intention  of  the  legislature ;  in  enforcing  the  rules  of 
private  international  law,  the  courts  seek  merely  to  proceed  upon  broad  lines 
of  justice.  It  is  natural  and  proper  that  the  former  should  distinguish  be- 
tween crimes,  offences  against  its  own  majesty,  and  civil  wrongs  inflicted  upon 
a  private  citizen.  But  in  private  international  law,  the  ground  of  the  enforce- 
ment of  a  foreign  law  is  international  comity,  which  is  nothing  more  than  the 
enlightened  sentiment  that  exact  justice  may  best  be  meted  out  by  requiring 
that  a  man's  acts  should  be  governed  by  the  law  under  which  he  acts,  pro- 
vided the  enforcement  of  that  law  will  not  conduce  to  injustice  nor  affect  the 
interests  of  the  forum.  But  if  to  hold  a  wrongdoer  liable  in  double  or  treble 
damages  to  the  party  injured  is  not  punishment  to  the  former,  it  is  certainly 
more  than  justice  to  the  latter.  Justice  to  him  is  satisfied  by  compensatory 
damages.  Hence  the  forum,  in  endeavoring  to  mete  out  exact  justice  to  the 
parties  by  enforcing  a  foreign  law  rather  than  its  own,  will  find  itself,  undei 
this  view,  rendering  to  the  injured  party  more  than  justice  requires,  and  at 
the  expense  of  the  other  litigant.  He  has  a  right  to  demand  this  under  the 
municipal  law,  not  because  justice,  but  because  the  positive  law,  requires  or 
permits  it.  But  where  he  seeks  to  enforce  his  claim  in  another  State,  what 
right  has  he  to  ask  this  of  the  forum  whose  policy  may  be  entirely  different  ? 


24  FOURTH  EXCEPTION  —  PENAL   LAWS.  §  10 

the  purpose  is  to  inflict  punishment  upon  him,  not  merely  to 
save  the  injured  party  harmless.  The  purpose  of  the  law  is,  by 
means  of  the  penalty,  to  deter  the  wrongdoer  from  perpetrating 
the  wrong,  and  this  is  the  object  of  all  punishment.  So  far  as 
private  international  law  is  concerned,  it  matters  not  whether 
that  punishment  is  inflicted  through  the  instrumentality  of  an 
ordinary  prosecution  by  the  state's  officers  for  a  fine,  or  through 
the  medium  of  a  civil  action  by  the  party  injured  for  penal  dam- 
ages. In  substance  it  is  an  act  of  punishment;  it  is  punitive  in 
either  case.  On  the  other  hand,  the  right  given  the  injured 
party  to  recover  single  damages  of  the  wrongdoer  is  not  by  way 
of  punishment  to  the  latter,  but  merely  by  way  of  reimburse- 
ment or  compensation  to  the  former.     It  is  strictly  remedial.* 

Under  either  view,  all  laws  punishing  crime  in  the  strict 
sense  of  the  word,  or  imposing  disabilities  as  the  consequence 
thereof,  are  penal,  and  will  be  given  no  exterritorial  effect. 
Hence  disqualifications  to  testify  by  reason  of  conviction  of 
felony  will  not  follow  the  convict  into  another  State.* 

So  it  is,  according  to  the  weight  of  authority,  with  regard 
to  the  disability,  imposed  by  the  law  of  many  States  upon  the 

*  McAllister  v.  Smith,  17  111.  328,  65  Am.  Dec.  651 ;  Le  Forest  v.  Tolman, 
117  Mass.  109  ;  Scoville  v.  Caufield,  14  Johns.  (N.  Y.)  388;  Dale  v.  R.  R. 
Co.,  57  Kan.  601,  47  Pac.  521,  523  ;  Adams  v.  R.  R.  Co.,  67  Vt.  76,  30  Atl. 
6gZ^In  Dale  v.  R.  R,  Co.,  suit  was  brought  in  Kansas  for  death  occurring  ia 
New  Mexico  by  wrongful  act.  The  statute  of  New  Mexico,  under  which  the 
action  was  brought,  provided  that  in  case  of  death  resulting  from  the  negli- 
gence of  the  servants  of  a  railroad  company,  the  corporation  should  "forfeit 
and  pay  for  every  person  so  dying  the  sum  of  $5,000,"  to  be  recovered  by  the 
husband,  wife,  or  child.  This  statute,  though  remedial  from  the  standpoint 
of  the  municipal  law  of  New  Mexico,  was  held  by  the  Kansas  court  to  be 
penal  from  the  standpoint  of  private  international  law,  because  the  amount  of 
damages  recoverable  was  absolute.  So,  in  Adams  v.  R.  R.  Co.,  where  death 
was  caused  in  Massachusetts,  whose  statute  provided  for  a  recovery  not  ex- 
ceeding $5,000  nor  less  than  $500,  to  be  assessed  with  reference  to  the  degree 
of  culpability  of  the  company,  it  was  held  that  the  statute  was  penal,  and  not 
enforceable  in  Vermont.  Both  of  these  cases  were  decided  after  Huntington 
V.  Attrill. 

6  Huntington  v.  Attrill,  146  XT.  S.  657,  673  ;  Com.  v.  Green,  17  Maas. 
515,  539  ;  Sims  v.  Sims,  75  N.  Y.  466;  St.  Sure  v.  Lindsfelt,  82  Wis.  346,  18 
L.  R.  A.  515,  519.     With  respect  to  the  situs  of  crimes,  see  post,  §  204. 


§  10      FOURTH  EXCEPTION  —  PENAL  LAWS.        25 

guilty  party  to  a  divorce  suit,  to  marry  again  during  the  life  ol 
the  consort.  Such  a  disability  is  generally  regarded  as  penal  in 
its  nature,  and  will  uot  invalidate  a  marriage  celebrated  else- 
where, even  where  the  marriage  takes  place  in  evasion  of  the 
law  of  the  prohibiting  State,  and  the  parties  immediately  return 
thither.' 

At  one  time  it  was  thought  that  statutes  giving  the  right  to 
recover  for  the  death  of  a  person  by  wrongful  act  were  penal, 
and  not  enforceable  in  other  States;'  but  this  view  has  long 
since  been  rightly  overruled,  and  it  is  now  universally  held  that 
such  stat#tes  are  remedial,  conferring  a  special  remedy  and 
therefore  enforceable  abroad.* 

So,  also,  difficulty  has  been  found  in  the  past  in  determining 
the  nature  of  statutes  existing  in  some  jurisdictions,  which  im- 
pose liabilities  upon  stockholders,  officers,  and  directors  of  cor- 
porations, unknown  to  the  common  law,  with  respect  to  the 
creditors  of  the  corporation.  Such  are  statutes  making  the 
stockholders  liable  to  creditors  of  the  corporation  for  an  amount 
equal  to  the  amount  of  their  stock ;  statutes  providing  that, 
upon  the  return  of  an  execution  against  a  corporation  unsat- 
isfied, execution  may  at  once  issue  against  any  stockholder,  or 
that  the  stockholders  may  be  charged  by  action  with  the  amount 
of  the  judgment ;  statutes  authorizing  suits  to  be  brought 
against  stockholders  of  corporations  dissolved;  statutes  making 

«  Huntington  r.  Attrill,  146  U.  S.  651,  673 ;  Dickson  v.  Dickson,  1  Yerg. 
(Tenn.)  110,  24  Am.  Dec.  444;  Com.  v.  Lane,  113  Mass.  458,  470,  18  Am. 
Rep.  509  ;  Putnam  v.  Putnam,  8  Pick.  (Mass.)  433  ;  West  Cambridge  v.  Lex- 
ington, 1  Pick.  (Mass.)  506,  510,  11  Am.  Dec.  231  ;  Van  Voorhis  r.  Brint- 
nall,  86  N.  Y.  18,  28,  36,  40  Am.  Rep.  505  ;  Succession  of  Hernandez,  46  La 
Ann.  962,  24  L.  R.  A.  831,  842,  note.  But  see  Pennegar  v.  State,  87  Tenn. 
244,  10  S.  W.  305,  2  L.  R.  A.  703.     See  post,  §  74. 

7  Richardson  w.  R.  R.  Co.,  98  Mass.  85,  89  ;  Burns  ».  R.  R.  Co.,  113  Ind. 
169,  15  N.  E.  230,  231. 

8  Stewart  v.  R.  R.  Co.,  168  U.  S.  445  ;  Texas,  etc.  R.  R.  Co.  v.  Cox, 
145  U.  S.  593  ;  Dennick  v.  R.  R.  Co.,  103  U.  S.  11  ;  Higgins  v.  R.  R.  Co., 
155  Mass.  176,  29  N.  E.  534 ;  Wooden  v.  R.  R.  Co.,  126  N.  Y.  10  :  Leonard 
».  Nav.  Co.,  84  N,  Y.  48,  38  Am.  Rep.  491  ;  Usher  v.  R.  R.  Co.,  126  Penn. 
St.  207,  17  Atl.  597  ;  Bruce  v.  R.  R.  Co.,  83  Ky.  174 ;  Morris  v.  R.  R.  Co., 
65  la.  727,  54  Am.  R^p.  39  ;  Nelson  v.  R.  R.  Co.,  88  Ya.  971,  14  S-  R.  838. 
See  post,  §§  200  et  seq. 


26        FOURTH  EXCEPTION  —  PENAL  LAWS.      §  10 

the  oflScers  of  a  corporation  who  sign  and  record  false  certificates 
of  the  amount  of  its  capital  stock  liable  for  all  its  debts,  etc. 

Here  too  it  was  at  one  time  thought  that  such  statutes  were 
penal  and  for  this  reason  not  enforceable  in  other  States.'  But 
it  is  now  settled  that  such  statutes  are  not  penal.  Their  pur- 
pose is  not  to  punish,  but  to  give  creditors  additional  security 
for  their  debts. ^°  Such  liabilities  are  quasi-contractual,  the  situs 
of  which  is  the  situs  of  the  corporation,  not  of  the  corporators, 
and  if  precise  and  definite  in  character,  and  no  special  remedy 
to  enforce  them  is  provided  by  the  law  creating  them,  they  may 
be  enforced  in  other  States.  The  general  rule  has  been  thus 
accurately  laid  down  by  the  California  court :  "  *'  Where  a 
sta^te  creates  "a  right  and  prescribes  a  remedy  for  its  enforce- 
ment, that  remedy  is  exclusive.  Where  a  liability  is  created 
which  is  not  penal,  andTno  remedy  is  prescribfrl^  thn  liability 
may  be  enforced  whereverthe  person  isfound.  The  procedure 
however  will  be  entirely  governed  by  the  law  of  the  forumTTi 
the "law'creafing  the  liability~~pfovi3e8ior"arparticular  mode 
of  enforcing  it,  the  mode  limits  the  liability.  If  it  be  a  con- 
tract, the  parties  contracted  with  the  understanding  that  they 
can  be  held  liable  in  no  other  way.  And  such  liability  cannot 
be  enforced  in  another  State.  Here  a  special  remedy  is  pro- 
vided, and  not  only  so,  but  plainly  it  was  intended  that  it 
should  be  the  only  remedy." 

The  main  question  in  these  cases  is  not  whether  there  exists 
a  liability  in  other  States  than  the  one  enacting  the  statute,  foi 
it  seems  to  be  universally  conceded  that  the  liability  does  exist 
even  in  States  which  refuse  to  enforce  it,^*  but  whether  there  is 

•  Kritzer  v.  Woodson,  19  Mo.  329;  Ochiltree  r.  Contracting  Co.,  54  Ma 
113. 

10  Huntington  v.  Attrill,  146  IT.  S.  657,  666,  676 ;  Stewart  v.  R.  R.  Co., 
168  U.  S.  445  ;  Russell  v.  R.  R,  Co.,  113  Cal.  258,  45  Pac.  323  ;  Guerney  v. 
Moore,  131  Mo.  650,  32  8.  W.  1132  ;  Marshall  v.  Sherman,  148  N.  Y.  9,  10,  29, 
42  N.  E.  419  ;  First  Nat.  Bank  v.  Dillingham,  147  N.  Y.  603  ;  Hancock  Nat 
Bank  v.  Ellis,  166  Mass.  414  ;  Post  v.  R.  R.  Co.,  144  Mass.  341,  345.  But 
see  Coffing  v.  Dodge,  167  Mass.  231,  45  N.  E.  928. 

"  Russell  V.  Pac.  R.  R.  Co.,  113  Cal.  258,  45  Pac.  323,  324.  See  alw 
Marshall  v.  Sherman,  148  N.  Y.  9,  29. 

^  Post  V.  K.  R.  Co.,  144  Mass.  341,  344,  345. 


f  10  FOURTH   EXCETPTION  —  PENAL   LAWS.  27 

in  the  State  of  the  forum  the  machinery  proper  and  necessary  to 
enforce  the  peculiar  liability,  so  that  care  may  be  taken  to  see 
that  no  injustice  be  done." 

It  is  obvious  that  if  a  special  and  peculiar  remedy  is  given 
by  the  law  of  the  State  creating  the  liability,  no  other  State 
will  in  general  possess  the  machinery  adequate  to  enforce  it, 
and  its  courts  would  have  no  authority  to  enforce  it  by  other 
means."  If  the  statute  creating  the  liability  leaves  the  remedy 
to  be  determined  by  the  application  of  general  principles  of 
jurisprudence,  then  its  «nforcement  in  a  foreign  State  must 
depend  upon  whether  such  State,  through  its  courts,  possesses 
adequate  machinery  to  enforce  it,  without  danger  of  injustice. 
Hence  a  liability  arising  upon  the  same  statute  may  be  enforced 
in  one  State  when  it  will  not  be  enforced  in  another.*^  Even 
in  the  same  State  the  machinery  may  be  adequate  for  the 
enforcement  of  certain  rights  in  connection  with  the  liability, 
while  not  adequate  for  other  purposes.  In  that  event,  since  the 
existence  of  the  liability  is  recognized  everywhere,  such  redress 
as  the  courts  of  the  forum  may  properly  grant  will  be  afforded. 
Hence  in  Massachusetts,  whose  courts  refuse  to  directly  enforce 
a  quasi-contractual  liability  of  this  kind,  it  was  nevertheless 
held  that  if  the  relief  sought  was  merely  a  discovery  in  equity, 
by  the  officers  of  the  corporation,  of  the  stockholders  and  the 
number  of  shares  held  by  each,  the  relief  should  be  granted, 
although  the  purpose  of  the  discovery  was  to  enforce  by  suit  in 
another  State  a  personal  liability  imposed  upon  the  stockholders 
by  the  laws  of  another  State.^' 

18  Post  V.  R.  R.  Co.,  144  Mass.  341 ;  Bank  v.  Rindge,  154  Mass.  203.  See 
Bank  v.  Rindge,  57  Fed.  279  ;  Guerney  v.  Moore,  131  Mo.  650,  32  S.  W.  1132. 

"  See  Russell  v.  Pac.  R.  R.  Co.,  113  Cal.  258,  45  Pac.  323  :  Marshall  v. 
Sherman,  148  N.  Y.  9,  42  N.  E.  419  ;  Bank  v.  Rindge,  154  Mass.  203  ; 
Stewart  v.  R.  R.  Co.,  168  U.  S.  445. 

16  See  Bank  v.  Rindge,  154  Mass.  208  ;  Bank  v.  Rindge,  57  Fed.  279  [U.  S. 
Court  for  California]  ;  Guerney  v.  Moore,  131  Mo.  660,  32  S.  W.  1132.  These 
cases  all  arose  under  the  same  Kansas  statute,  making  stockholders  liable  to 
creditors  of  the  company  for  an  amount  equal  to  the  amount  of  their  stock. 
In  the  Massachusetts  case,  it  was  held  that  the  judicial  machinery  ol  that 
State  was  inadequate  to  ensure  full  justice.  In  the  other  two  cases  the  Uik 
bility  was  enforced. 

i«  Post  V.  R.  R.  Co.,  144  Mass.  341. 


28  FIFTH   EXCEPTION  —  IMMOVABLES.  §  11 

§  11.  Fifth  Exception  —  Transactions  relating  to  Immov- 
able Property.  —  It  is  generally  admitted  that  transactions 
relating  to  lands  or  immovable  property  of  any  kind  are  to  be 
governed  by  the  law  of  the  place  where  the  property  is  situated 
(lex  loci  rei  sitae  or  lex  situs). ^ 

Although  this  principle  is  generally  recognized,  the  reason  for 
the  doctrine  has  not  always  been  kept  clearly  in  view.  In  truth 
it  simply  constitutes  one  branch  of  the  first  exception,  already 
discussed,  and  what  is  known  as  the  lex  situs  is,  in  the  last 
analysis,  nothing  more  than  the  lex  fori.  Since  immovable 
property  is  fixed  forever  in  the  State  where  it  lies,  and  since  no 
other  State  can  have  any  jurisdiction  over  it,  it  follows  nec- 
essarily that  no  right,  title,  or  interest  can  be  finally  acquired 
therein,  unless  assented  to  by  the  courts  of  that  State,  in  accord- 
ance with  its  laws.  The  courts  of  no  other  State  can  finally 
pass  upon  such  questions,  so  as  to  give  or  take  away  from  any 
litigant  a  claim  to  the  property.  On  the  other  hand,  the  courts 
of  the  situs  of  the  land  will  be  peculiarly  rigid  in  their  require- 
ment that  the  law  of  the  situs  be  complied  with  in  regard  to 
the  transfer  of  the  title  to  that  class  of  property.  The  policies 
of  each  State  in  connection  with  the  transfer  of  land  within 
its  limits  are  justly  ranked  amongst  the  most  important  of 
all  its  policies,  no  outside  interference  with  which  will  be 
tolerated.  Every  effort  is  made  by  each  State  to  have  its  laws 
touching  the  devolution,  transfer,  and  charge  of  lands  within 
its  borders  as  definite  and  certain  as  possible.  Particular  for- 
malities are  required  which  are  not  required  in  other  matters. 
And  it  is  of  the  utmost  importance  that  the  legal  records  of 
such  transactions,  constituting  chains  of  title  to  land,  should  be 
kept  free  from  blemish,  irregularity,  or  confusion  with  the 
requirements  of  other  States. 

Hence  it  becomes  peculiarly  a  part  of  the  policy  of  every 
State  that  no  transactions  relating  to  the  transfer  of  any  interest 
in  or  title  to  immovable  property  situated  there  shall  be  upheld, 

1  United  States  v.  Crosby,  7  Cr.  115  ;  Clark  v.  Graham,  6  Wheat.  577 ; 
Kerr  v.  Moon,  9  "Wheat.  565 ;  McCormick  v  SiiUivant,  10  Wheat.  192  ; 
Darby  v.  Mayer,  10  Wheat.  465 ;  Ross  v.  Ross,  129  Mass.  243,  245,  37  Am. 
Rep.  321;  and  other  cases  cited  in  note  5,  infra 


§11  FIFTH   EXCEPTION  —  IMMOVABLES.  29 

if  violative  of  its  own  law,  whether  valid  by  the  laws  of  foreign 
States  or  not.  These  considerations  are  amply  sufficient  to 
induce  the  courts  of  the  situs  of  land  (when  the  situs  is  the 
forum)  to  prefer  their  own  laws  upon  this  subject  to  those  of 
any  ether  State.'' 

Nor  will  the  courts  of  other  States  attempt  to  enforce  their 
own  laws  with  respect  to  land  situated  elsewhere,  not  only 
because  of  the  spirit  of  comity  and  their  unwillingness  to  en- 
gage in  conduct  towards  other  States,  which  they  would  not  tol- 
erate in  other  States  towards  themselves,  but  also,  and  perhaps 
chiefly,  because  of  their  utter  inability  to  render  any  judgment  or 
decree  that  would  be  final  and  effectual  to  transfer  any  interest 
in  the  land.*  Instead,  therefore,  of  rendering  idle  judgments  in 
accordance  with  their  own  law,  the  courts,  in  dealing  with  the 
title  to  foreign  real  estate,  will  seek  to  determine  the  rules 
laid  down  by  the  lex  situs  of  the  land,  and  will  decide  in  ac- 
cordance with  that  law,  for  to  it  the  parties  must  finally  appeal 
in  any  event.* 

Thus  it  comes  to  be  a  well  settled  principle  of  private  inter- 
national law,  fortified  by  a  great  mass  of  authority,  that  all 
questions  relating  to  the  transfer  of  title  to  immovable  prop- 
erty, wherever  arising,  will  be  governed  by  the  lex  situs,  the 
law  of  the  ultimate  forum  in  which  all  such  questions  must 
finally  be  decided.* 

«  See  Williams  v.  Saunders,  5  Coldw.  (Tenn.)  60,  76  ;  Sneed  v.  Ewing, 
5  J.  J.  Marsh.  (Ky.)  460,  22  Am.  Dec.  41,  56. 

«  See  Dicey,  Confl.  L.  38-40  ;  Rodgers  v.  Rodgers,  56  Kan.  483,  48  Pac. 
779,  781.     See  Guillander  v.  Howell,  35  N.  Y.  657,  660. 

*  See  Hawley  v.  James,  7  Pai.Ch.  (N.  Y.)  213,  32  Am.  Dec.  623. 

5  Watkins  v.  Holman,  16  Pet.  26;  Ross  v.  Ross,  129  Mass.  243,  245,  37 
Am.  Rep.  321 ;  Williams  i'.  Saunders,  5  Coldw.  (Tenn. )  60,  70  ;  Wick  v.  Daw- 
son, 42  W.  Va.  43,  24  S.  E.  587;  Swank  i;.  Hufnagle,  111  Ind.  453,  12  N.  E. 
303  ;  Otis  v.  Gregory,  111  Ind.  504,  13  K  E.  39  ;  Carpenter  v.  Bell,  96  Tenn. 
294,  34  S.  W.  209 ;  Knox  v.  Jones,  47  N.  Y.  389,  395  ;  Rice  v.  Harbeson,  63 
N.  Y.  493,  502 ;  Staigg  v.  Atkinson,  144  Mass.  564,  569 ;  Chipman  v.  Pea- 
body,  159  Mass.  420,  34  N.  E.  563  ;  Poison  v.  Stewart,  167  Mass.  211,  45  N.  E. 
737;  Richardson  v.  De  Giverville,  107  Mo.  422,  17  S.  W.  974,  977;  Keith  v. 
Keith,  97  Mo.  224,  10  S.  W.  597;  Lamar  v.  Scott,  3  Strob.  L.  (S.  C.)  562  ; 
Washburn  v.  Van  Steenwyk,  32  Minn.  336,  20  N.  W.  324  ;  Heine  v.  Ins.  Co., 
45  La.  Ann.  770,  13  So.  1;  Bronson  v.  Lumber  Co.,  44  Minn.  348,  46  N.  W. 


30  FIFTH   EXCEPTION  —  IMMOVABLES.  §  11 

Not  only  does  the  lex  situs  control  transfers  of  land  to  the 
extent  of  invalidating  such  transfers  of  title  as  are  not  in  ac- 
cordance with  the  lex  situs,  though  valid  where  entered  into, 
but  the  converse  is  also  true.  If  valid  by  the  lex  situs,  the 
transaction  may  be  upheld,  though  invalid  where  entered  into.' 

A  qualification  of  the  rule  however  must  be  observed,  where 
the  question  relates  not  to  the  transfer  itself,  but  to  some  col- 
lateral incident  of  the  transfer.  Thus,  while  in  case  of  a  mort- 
gage of  land  or  an  assignment  thereof  for  the  benefit  of  creditors 
the  lex  situs  will  still  govern  to  the  extent  that  such  transfer 
constitutes  a  muniment  of  title  as  between  the  parties,  it  does 
not  follow  that  an  instrument  sufl&cient  for  this  purpose  under 
the  lex  situs,  but  which  transfers  a  title  voidable  by  creditors, 
will  in  the  latter  respect  also  be  governed  by  the  lex  situs. 
Such  matters  do  not  constitute  any  part  of  the  muniment  of 
title,  and  are  merely  matters  of  local  policy.  Such,  for  instance, 
are  laws  of  the  situs  avoiding,  at  the  instance  of  creditors 
thereby  defrauded,  assignments  which  prefer  creditors,  or  to 
which  is  not  appended  an  inventory  of  the  property  assigned, 
or  to  which  bonds  by  the  trustees  for  the  due  performance  of 
their  duties  are  not  attached.  These  requirements,  and  others 
of  the  same  kind,  are  for  the  benefit  of  creditors.  As  between 
the  parties,  the  assignment,  if  in  conformity  to  the  lex  situs, 
is  valid,  and  if  no  creditors  complain,  will  be  sustained.  It  is 
manifest  that  requirements  like  those  above  mentioned  do  not 
constitute  part  of  the  title,  but  are  intended  for  the  collateral 
purpose  of  securing  creditors.  They  are  mere  matters  of  policy, 
and  may  or  may  not  be  intended  by  the  legislature  to  protect 
foreign  as  well  as  domestic  creditors,  their  effect  depending  upon 
the  interpretation  placed  upon  the  policy  by  the  courts  of  the 
situs  and  forum. 

570 ;  Ford  ».  Ford,  70  Wis.  19,  33  N.  W.  188, 194  ;  Frazier  v.  Boggs,  37  Fla. 
307,  20  So.  245  ;  Rodgers  v.  Rodgers,  56  Kan.  483,  43  Pac.  779,  781;  Glenn 
V.  Thistle,  23  Miss.  42,  49 ;  Penfield  v.  Tower,  1  N.  D.  216,  46  N.  W.  413  ; 
Post  V.  Bank,  138  IlL  559,  28  N.  E.  978  ;  Wood  v.  Wheeler,  111  N.  C.  231, 
16  S.  E.  418. 

«  Succession  of  Cassidy,  40  La.  Ann.  827,  5  So.  292  ;  Post  v.  Bank,  138 
IlL  559,  28  N.  E.  978 ;  Chipman  r.  Peabody,  159  Mass.  420,  34  N.  £.  563. 


§  11  FIFTH  EXCEPTION  —  IMMOVABLES.  31 

In  suits  by  domestic  creditors  the  law  of  the  situs  will  un- 
doubtedly prevail,  not  because  it  is  the  lex  situs  however,  but 
because  it  is  the  lex  fori,  being  an  instance  of  the  second  excep- 
tion.' But  if  the  creditors  who  institute  the  suit  are  not  citi- 
zens, unless  the  requirements  of  the  lex  situs  are  intended  to 
secure  all  creditors,  the  law  of  the  place  where  the  assignment 
is  made  (lex  loci  contractus)  will  control  in  these  particulars, 
even  though  the  subject  be  real  estate  located  elsewhere.' 

So  also  with  respect  to  mortgages  of  land,  though  the  mort- 
gage itself  must  be  such  as  will  constitute  a  transfer  of  title 
under  the  lex  situs,  the  question  as  to  whether  the  debt  secured 
thereby  (if  contracted  in  another  State)  is  a  valid  consideration 
to  support  the  mortgage  (for  instance,  whether  it  is  usurious)  is 
to  be  determined  by  the  law  which  properly  governs  the  validity 
of  the  debt.' 

The  same  may  also  be  said  of  contracts  to  convey  land  situ- 
ated elsewhere.  So  far  as  they  constitute  links  in  the  chain  of 
title  (passing  the  equitable  title  thereto),  they  are  to  be  gov- 
erned by  the  lex  situs  of  the  land.  But  if  the  vendee  waives 
his  right  to  a  conveyance,  or  has  none,  and  looks  upon  it  in  the 

7  Ante,  §  8  ;  May  v.  Bank,  122  111.  551,  13  N.  E.  806  ;  Williams  v.  Dry 
Goods  Co.,  4  Okl.  145,  43  Pac.  1148,  1149;  Long  v.  Girdwood,  150  Penn.  St. 
413,  23  L.  R.  A.  33,  note. 

8  May  V.  Bank,  122  111.  551,  13  N.  E.  806  ;  Juillard  v.  May,  130  111.  87, 
22  N.  E.  477;  Williams  v.  Dry  Goods  Co.,  4  Okl.  145,  43  Pac.  1148  ;  Longw. 
Girdwood,  150  Penn.  St.  413,  23  L.  R.  A.  33,  note,  24  Atl.  711  ;  Thurston  v. 
Rosenfield,  42  Mo.  474  ;  Chafee  v.  Bank,  71  Me.  514,  36  Am.  Rep.  345.  But 
see  Moore  v.  Church,  70  la.  208,  59  Am.  Rep.  439.  It  is  otherwise  if  the 
policy  of  the  State  is  violated  by  the  assignment.  Bank  v.  Stellings,  31  S.  C. 
360,  9  S.  E.  1028.  In  respect  to  this  point,  there  is  no  difference  in  principle 
between  assignments  of  land  and  of  personalty.  See  post,  §§  133-135.  In 
case  of  involuntary  as.signments  of  land  under  foreign  insolvent  or  bankrupt 
laws,  such  assignments  being  given  no  exterritorial  force  in  the  United  States, 
the  lex  fori  (or  lex  situs)  will  govern,  at  least  as  to  creditors  domiciled  in 
other  States  than  that  where  such  assignment  occurs.  See  Townsend  v.  Coxe, 
151  111.  62,  37  N.  E.  689  ;  Moore  v.  Land,  etc.  Co.,  82  Md.  288,  33  Atl.  641 ; 
Hervey  v.  Edens,  66  Tex.  420,  6  S.  W.  306  ;  post,  §  138. 

9  Fessenden  v.  Taft,  65  N.  H.  39,  17  Atl.  713,  714;  Klinck  v.  Price,  4  W. 
Va.  4,  6  Am.  Rep.  268.  See  Bowles  v.  Field,  78  Fed.  742.  But  see  Chap- 
man V.  Robertson,  6  Pai.  Oh.  (N.  Y.)  627,  31  Am.  Dec.  264. 


32  LAND  —  TRANSPEJJS   AND   LIENS  §  12 

light  of  a  mere  personal  contract,  suing  for  damages  for  the 
breach  thereof,  it  will  be  governed  by  the  law  properly  appli- 
cable to  an  ordinary  executory  contract.^*^  Whether  the  latter 
principle  will  apply  in  case  of  a  suit  by  the  vendee  for  the 
specific  execution  of  a  deed  to  the  land,  instead  of  a  suit  for 
aamages,  may  be  doubtful.  It  is  believed  however  that  it  will, 
at  least  in  cases  wheie  a  proper  deed  can  be  made,  in  conformity 
to  the  lex  situs  of  the  land.^^  The  courts  of  the  situs  would 
recognize  and  enforce  a  contract  of  this  character,  even  though 
not  in  conformity  to  the  lex  situs,  if  it  conforms  to  the  proper 
law.  If  they  did  not,  there  would  be  nothing  to  prevent  the 
courts  of  other  States  from  compelling  the  vendor  to  make  a 
suitable  deed,  in  accordance  with  the  lex  situs,  which  the  courts 
of  the  situs  would  be  bound  to  recognize.^* 

§  12.  Same  —  Application  of  Lex  Situs  to  Transfers  of 
Land,  and  Liens  thereon.  —  Subject  to  the  qualifications  men- 
tioned in  the  preceding  section,  the  lex  situs  regulates  all 
transfers  of  land,  in  every  point  which  constitutes  part  of  the 
conveyance. 

Thus,  the  capacity  to  devise  lands,  or  to  be  a  devisee  thereof, 
or  to  transfer  them  inter  vivos  by  conveyance  or  mortgage,  will 
be  controlled  by  the  lex  situs  of  the  realty.*     So  also  the  forms 

»  See  Glenn  v.  Thistle,  23  Miss.  42. 

^^  The  kind  of  conveyance  which  is  to  be  made  in  pursuance  of  the  contract 
of  sale  is  to  be  determined  by  the  lex  situs  of  the  land,  that  being  the  place 
of  performance  of  the  contract.  See  Carnegie  v.  Morrison,  2  Met.  (Mass.) 
381,  398. 

^*  This  is  the  conclusion  of  a  majority  of  the  court  in  Poison  v.  Stewart, 
167  Mass.  211,  45  N.  E.  737.  That  ca.se  however  was  a  suit  for  the  specific 
performance  of  a  covenant  by  a  husband  made  in  North  Carolina  to  release 
and  extinguish  his  marital  rights  in  the  wife's  land  in  Massachusetts.  The 
covenant  did  not  purport  to  pass  any  title.  But  the  principle  would  seem  to 
be  the  same. 

1  Carpenter  v.  Bell,  96  Tenn.  294,  34  S.  "W.  209 ;  Williams  v.  Saunders, 
5  Coldw.  (Tenn.)  60,  72;  Frazier  v.  Boggs,  37  Fla.  307,  20  So.  245  ;  Ford  v. 
Ford,  70  Wis.  19,  33  N.  W.  188  ;  Cochran  v.  Benton,  126  Ind.  58,  25  N.  E. 
870;  Otis  v.  Gregory,  111  Ind.  504,  13  N.  E.  39;  Bethell  v.  Bethell,  54  Ind. 
428,  23  Am.  Rep,  660,  652  ;  Poison  v.  Stewart,  167  Mass.  211,  218,  45  N.  E. 
737;  Boehme  v.  Rail,  51  N.  J.  Eq.  574,  26  Atl.  832;  White  t;  Howard,  38 
Conn.  342. 


§  12  LAND  —  TRANSFERS   AND  LIENS.  93 

aud  solemnities  required  by  the  lex  situs  for  valid  conyeyances 
or  devises  of  land,  or  for  powers  of  attorney  to  convey  the  same, 
must  be  followed.  Compliance  with  the  law  of  the  party's  dom- 
icil  or  of  the  place  where  the  instrument  is  executed  will  not 
suffice.^ 

The  same  principle  applies  in  the  determination  of  the  validity 
and  effect  of  the  substantial  provisions  of  the  conveyance,  mort- 
gage, or  devise.     The  lex  situs  of  the  land  governs.' 

So  it  is  also  in  respect  to  the  devolution  of  land  by  descent. 
No  one  is  heir  to  a  deceased  owner  of  land,  unless  he  belongs 
to  the  class  designated  as  such  by  the  lex  situs  of  the  land.* 
And  the  same  law  will  control  the  shares  each  heir  shall  inherit, 
as  whether  they  shall  take  per  capita  or  per  stirpes.^  If  the 
rules  of  primogeniture  or  of  representation  prevail  in  the  State 
where  the  land  is  situated,  they  will  furnish  the  guide,  what- 
ever may  be  the  law  of  descent  in  the  domicil  of  the  deceased 
owner.  As  was  said  in  a  leading  case:  ®  "  If  a  man  domiciled 
in  England  has  two  legitimate  sons  there  and  dies  intestate, 
owning    land  in  Massachusetts,  both  sons  have   the  status  of 

2  Kerr  i;.  Moon,  9  Wheat.  565  ;  Clark  v.  Graham,  6  Wheat.  577;  Williams 
V.  Saunders,  5  Coldw.  (Tenn.)  60,  72  ;  Otis  v.  Gregory,  111  Ind.  504,  13  N.  E. 
39  ;  Bethell  v.  Bethell,  54  Ind.  428,  23  Am.  Rep.  650,  652  ;  Ross  v.  Ross,  129 
Mass.  243,  245,  37  Am.  Rep.  321  ;  Ford  v.  Ford,  70  Wis.  19,  33  N.  W.  188, 
194  ;  Succession  of  Larendon,  39  La.  An.  952,  3  So.  219,  220. 

8  McGoon  V.  Scales,  9  Wall.  23 ;  Ross  v.  Ross,  129  Mass.  243,  245,  37  Am. 
Rep.  321 ;  Williams  v.  Saunders,  5  Coldw.  (Tenn.)  60,  72,  75  ;  Hawley  v. 
James,  7  Pai.  Ch.  (N.  Y.)  213,  32  Am.  Dec.  623;  Frazier  v.  Boggs,  37  Fla. 
307,  20  So.  245  ;  Bethell  v.  Bethell,  54  Ind.  428,  23  Am.  Rep.  650,  652  ; 
Bronson  v.  Lumber  Co.,  44  Minn.  348,  46  N.  W.  570,  571 ;  Penfield  v.  Tower, 
1  N.  D.  216,  46  N.  W.  413  ;  Succession  of  Cassidy,  40  La.  Ann.  827,  5  So. 
292,  295. 

*  Woodward  v.  Woodward,  87  Tenn.  644,  11  S.  W.  892,  895  ;  Williams  v. 
Saunders,  5  Coldw,  (Tenn.)  60,  75  ;  McGoon  v.  Scales,  9  Wall.  23  ;  Miller  v. 
Miller,  91  N.  Y.  315  ;  Gray  v.  Holmes,  57  Kan.  217,  45  Pac.  596,  33  L.  R.  A. 
207;  Warren  v.  Prescott,  84  Me.  483,  17  L.  R.  A.  435,  note  ;  Ross  v.  Roas, 
129  Mass.  243,  37  Am.  Rep.  321 ;  Smith  v.  Derr,  34  Penn.  St.  126,  75  Am. 
Dec.  641 ;  Birtwhistle  v.  Vardill,  5  B.  &  C.  438,  7  CI.  &  F.  895. 

5  Story,  Confl.  L.  §  481  a. 

»  Ross  V.  Ross,  129  Mass.  243,  247,  37  Am.  Rep.  321.  See  also  Story, 
Confl.  L.  §  481  a. 

3 


34  LAND  —  TRANSFERS   AND  LIENS.  §  12 

legitimate  children  here,  but  by  virtue  of  our  statute  of  de« 
scents  the  land  descends  to  them  equally,  and  not  to  the 
eldest   son   alone,  as  by  the   law  of  England." 

But  though  it  is  well  settled  that  the  lex  situs  shall  deter- 
mine who  shall  inherit  lauds,  it  has  not  always  been  found  easy 
to  interpret  that  law.  For  example,  should  that  law  provide 
that  an  intestate's  land  shall  go  to  his  "children,"  a  question 
may  be,  and  has  been,  raised  whether  that  term  will  include 
bastard  children,  subsequently  legitimated  by  a  proper  foreign 
law.' 

In  such  case,  if  the  lex  situs  of  the  land  also  admits  of  sub- 
sequent legitimation,  though  by  a  different  method,  there  can  be 
little  doubt  that  such  a  child  will  be  included  in  the  class  desig- 
nated by  the  lex  situs  as  ''children."'  It  is  in  cases  where 
the  policy  of  the  situs  altogether  prohibits  such  legislation  that 
most  difficulty  arises.  The  famous  English  case  of  Birtwhistle 
V.  Vardill '  was  of  this  character.  The  question  there  was 
whether  a  bastard  son  of  Scotch  parents,  afterwards  legiti- 
mated by  the  marriage  of  the  parents  (which  by  the  law  of  Scot- 
land had  that  effect),  could  inherit  lands  in  England  as  heir. 
The  Court  of  King's  Bench  held  that  he  could  not,  though  ad- 
mitting that  he  must  be  considered  in  England  as  legitimate. 
This  decision,  after  elaborate  argument,  was  affirmed  in  the 
House  of  Lords.  The  decision  was  based  upon  the  strict  letter 
of  the  English  statute  of  Merton,  and  the  history  of  its  pas- 
sage." That  statute  was  construed  to  mean  that,  in  order  to 
inherit,  the  claimant  must  not  only  be  a  legitimate  child  (which 
was  admitted  to  be  the  fact  in  this  case),  but  must  also  have 
been  born  in  wedlock. 

"^  The  *•  proper  law  "  governing  the  status  of  a  bastard  subsequently  legiti- 
mated will  be  examined  hereafter.     Post,  §§  97  et  seq. 

8  Ross  V.  Ross,  129  Mass.  243,  37  Am.  Rep.  321 ;  Gray  v.  Holmes,  57  Kan. 
217,  45  Pac.  596,  33  L.  R.  A.  207. 

9  5  B.  &  C.  438.    Afterwards  affirmed  in  the  House  of  Lords,  7  CI.  &  F.  895. 
lo  The  statute  of  Merton  was  passed  by  the  English  nobility  in  Parliament 

in  response  to  a  demand  of  the  clergy  that  the  Roman  law  of  legitimation  per 
subseqtcens  matrimonium  be  adopted  in  England.  The  assembled  barons  curtly 
and  emphatically  declined  through  the  statute  of  Merton.  See  Ross  r.  Ross, 
129  Mass.  243,  252,  37  Am.  Rep.  321. 


§  12  LAND  —  TRANSFERS   AND   LIENS.  85 

But  the  basis  of  the  English  decision  is  purely  technical, 
being  founded  on  the  statute  of  Merton  alone,  and  the  modern 
tendency  in  the  United  States  —  at  least  in  States  where  that 
statute  is  held  not  to  be  in  force  —  seems  to  be  in  favor  of  per- 
mitting the  subsequently  legitimated  bastard  to  inherit,  pro- 
vided his  status  of  legitimacy  has  been  fixed  by  the  proper 
law.^^  Thus  in  a  New  York  case,^''  an  action  of  ejectment  was 
brought  there  by  the  plaintiff,  who  was  born  a  bastard.  The 
parents  subsequently  intermarried  in  the  State  of  their  domicil, 
the  effect  of  which,  by  the  domiciliary  law,  was  to  legitimate 
the  infant.  The  law  of  New  York  did  not  permit  such  an  effect 
to  a  subsequent  marriage.  The  plaintiff  claimed  the  New  York 
land  as  heir  to  his  father,  under  a  statute  of  that  State  pro- 
viding that  the  land  should  pass  to  "  the  lineal  descendants  "  of 
the  decedent.  It  was  also  provided  by  the  laws  of  New  York 
that  **  children  and  relatives  who  are  illegitimate  shall  not  be 
entitled  to  inherit."  It  was  held  that  the  plaintiff,  being  legiti- 
mate by  **the  proper  law,"  must  be  so  considered  in  New  York, 
and  accordingly  he  recovered  the  land. 

The  same  doctrine  is  applicable,  in  America  at  least,  to  chil- 
dren legally  adopted  in  accordance  with  the  proper  law,  where 
that  law  gives  them  the  same  status  and  puts  them  on  the  same 
footing  as  the  real  children  of  the  adopting  parent.  They  will 
in  general  be  entitled  to  inherit  land  from  the  adopting  parent 

u  Miller  v.  Miller,  91  N.  Y.  315  ;  Scott  v.  Key,  11  La.  Ann.  232  ;  "Wood- 
ward V.  Woodward,  87  Tenn.  644,  11  S.  W.  892,  895  ;  Ross  v.  Ross,  129  Mass. 
243,  256,  37  Am.  Rep.  321.  Smith  v.  Kelly,  23  Miss.  167,  55  Am.  Dec.  87, 
was  a  case  in  which  the  child  was  not  legitimated  by  the  "  proper  law."  See 
post,  §§  97  et  seq.  Even  in  England  the  mle  is  believed  to  be  otherwise  with 
respect  to  the  succession  of  personal  property,  the  statute  of  Merton  not 
being  applicable.  See  Wright's  Trusts,  2  K.  &  J.  595,  25  L.  J.  (Ch. )  621  ; 
Goodman  v.  Goodman,  3  Giff.  643;  Goodman's  Trusts,  17  Ch.  Div.  266; 
Skottowe  V.  Young,  L.  R.  11  Eq.  474  ;  Ross  v.  Ross,  129  Mass.  243,  256, 
37  Am.  Rep.  321.  Some  of  the  American  courts  however  have  followed, 
with  respect  to  lands,  the  decision  in  Birtwhistle  v.  Vardill,  holding  that  the 
statute  of  Merton  is  in  force  in  their  States.  Smith  v.  Derr,  34  Penu.  St.  126, 
75  Am.  Dec.  641 ;  Williams  »,  Kimball,  35  Fla.  49,  16  So.  783.  See  Bamum 
V.  Bamum,  42  Md.  252  ;  Keegan  v.  Geraghty,  101  111.  26 ;  Smith  ».  Kelly 
23  Miss.  167,  55  Am.  Dec.  87. 

"  Miller  v.  Miller,  91  N.  Y.  315. 


36  LAND  —  TRANSFERS   AND   LIENS.  §  12 

in  other  States,  as  if  they  were  in  reality  lineal  descendants  of 
the  adopter.^' 

The  provisions  of  a  deed  of  conveyance  of  land  will  be  in 
general  governed  by  the  lex  situs  of  the  land,  not  only  with 
respect  to  their  validity  and  effect,  as  has  been  already  shown, 
but  also  with  respect  to  the  interpretation  to  be  given  am- 
biguous legal  phrases  used  therein,  such  as  ''heirs;  "  "  chil- 
drcM  "  (as  whether  including  illegitimate  or  legitimate  children)  ; 
"brothers  "  (as  whether  or  not  including  those  of  the  half-blood) ; 
whether  or  not  a  provision  for  a  wife  is  to  be  deemed  intended 
in  lieu  of  her  dower ;  whether  a  limitation  to  one  for  life,  with 
remainder  to  his  heirs,  vests  an  inheritance  in  the  ancestor,  etc. 
Where  the  legal  effect  of  such  provisions  in  a  deed  varies  in 
different  States  the  lex  situs  of  the  land  (not  the  lex  loci  con- 
tractus), it  is  believed,  will  control;  for  in  the  construction  of 
a  deed  to  land,  legal  terms  are  given  their  strict  legal  inter- 
pretation, in  the  absence  of  plain  evidence  of  a  contrary  intent. 
They  constitute,  as  it  were,  rules  of  property,  muniments  of 
title. ^*  It  may  be  doubted,  however,  whether  the  same  rule 
will  necessarily  control  the  interpretation  of  ambiguous  phrases 
in  a  deed,  when  the  phrases  in  question  have  no  particular  legal 
signification  in  connection  with  transfers  of  land.  In  regard 
to  such  matters  the  actual,  not  the  legal,  meaning  of  the 
grantor's  words  will  be  sought,    in  accordance  with  the  prin- 

18  Ross  V.  Ross,  129  Mass.  243,  37  Am.  Rep.  321  ;  Melvin  v.  Martin,  18 
R.  I.  650,  30  Atl.  467  ;  Gray  v.  Holmes,  57  Kan.217,  45  Pac.  596,  33  L.R.  A. 
207;  Keegan  v.  Geraghty,  101  111.  26  ;  Van  Matre  v.  Sankey,  148  111.  356, 
36  N.  E.  628.  It  would  seem  to  be  otherwise  where  the  recognition  of  the 
foreign  status  might  result  in  injustice  to  third  persons,  citizens  of  the  forum, 
as  where  the  adopted  child  claims  to  inherit,  because  of  the  adoption,  from 
collateral  kindred  of  the  adopting  parent,  unless  the  statutes  of  the  situs 
provide  for  such  a  case.  Keegan  v.  Geraghty,  101  111.  26  ;  Van  Matre  v. 
Sankey,  148  111.  356,  36  N.  E.  628.  See  Lorlng  v.  Thomdike,  5  Allen 
(Mass.),  257. 

1*  Van  Matre  v.  Sankey,  148  111.  356,  36  N.  E.  628  ;  McCartney  v.  Osburn, 
118  111.  403,  9  N.  E.  210  ;  Brown  v.  Bank,  44  Ohio  St.  269,  6  N.  E.  648 ; 
Staigg  V.  Atkinson,  144  Mass.  564,  12  N.  K  354  ;  Jennings  v.  Jennings, 
21  Ohio  St.  56  ;  Richardson  v.  De  Giverville,  107  Mo.  422  ;  17  S.  W.  974, 
977  ;  Baxter  v.  Willey,  9  Vt.  276,  31  Am.  Dec.  628. 


§  12  LAND  —  TRANSFERS   AND  LIENS.  87 

ciples  whereby  is  determined  the  law  governing  the  interpreta- 
tion of  ordinary  contracts,  hereafter  to  be  noted.  ^^ 

But  in  the  case  of  a  devise,  the  courts  are  more  proae  to 
abide  by  the  actual  (as  opposed  to  the  legal  or  constructive) 
intent  of  the  testator,  in  matters  depending  merely  upon  his 
will.  The  law  which  he  most  probably  had  in  mind  when  he 
used  the  words  (generally  the  lex  domicilii  of  the  testator),  it 
is  believed,  will  determine  the  testator's  meaning.^' 

Whether  a  valid  trust  in  lands  is  created  by  the  provisions  of 
a  deed  or  will,  whether  or  not  a  trust  results  by  implication  of 
law,  whether  or  not  a  conveyance  absolute  on  its  face  shall  be 
deemed  a  mortgage,  and  other  questions  of  this  character,  are 
to  be  governed  by  the  lex  situs." 

Another  point  that  should  be  observed  in  this  connection 
arises  in  regard  to  the  effect  to  be  given  to  covenants  contained 
in  a  deed  conveying  lands,  where  the  deed  is  executed  and  the 
grantor  resides  in  one  State,  and  the  land  is  situated  in  another. 
In  the  solutioja  of  this  question,  it  must  first  be  observedthat 
although  a  covenant  is  contained  in  a  de^d  of  ftonvpyanfift  it  ib 

ifgpjf^iTi  goTioril  nTily  nTi     (wmi'iiilM  y  tntxitrai^t^,^  f^nd   for   mOSt   pUT- 

poseg-it  is  to  be  governed  by  the  low  oontrolling  executory  con-- 
tracts.  But  if  it  be  a  covenant  running  with  the  land,  especially 
if  it  be  a  covenant  of  title,  it  is  the  better  opinion  that  the 
effect  of  it  must  be  determined  by  the  lex  situs  in  all  cases 
where  its  breach  imposes  a  liability  or  confers  a  right  upon  the 
party  holding  the  title  to  the  land.  A  covenant  of  title  follows 
the  title  and  should  therefore  be  governed  by  the  same  law, 
though  the  liability  be  sought  to  be  imposed  elsewhere." 

"  Post,  §  186.    See  Mullen  v.  Reed,  64  Conn.  240,  29  Atl.  478. 

"  Post,  §  145  ;  Story,  C!onfl.  L.  §§  479  h,  479  m.  There  is  authority 
however  in  favor  of  the  lex  situs  of  the  land  in  such  cases.  See  Van  Matre 
j;.  Sankey,  148  111.  356,  36  N.  E.  628  ;  McCartney  v.  Osbum,  118  111.  403, 
9  N.  E.  210.     But  see  Staigg  v.  Atkinson,  144  Mass.  564,  12  N.  E.  354. 

17  Hawley  v.  James,  7  Pai.  Ch.  (N.  Y.)  213,  32  Am.  Dec.  623  ;  Penfield 
V.  Tower,  1  N.  D.  216,  46  N.  W.  413  ;  Baxter  v.  Willey,  9  Vt.  276,  31  Am. 
Dec.  623  ;  Depas  v.  Mayo,  11  Mo.  314,  49  Am.  Dec.  88. 

18  Post,  §  185;  Dickinson  r.  Hoomes,  8  Gratt.  (Va.)  353,  410  ;  Succession 
of  Cassidy,  40  La.  Ann.  827,  5  So.  292  ;  Bethell  v.  Bethell,  54  Ind.  428,  23  Am. 
Rep.  650.  But  see  Brown  v.  Bank,  44  Ohio  St.  269,  6  N.  E.  648,  which  ap- 
pears not  to  have  been  very  carefully  considered. 


38  WHAT   ARE  IMMOVABLES.  §  13 

So,  according  to  the  better  opinion,  the  right  of  a  creditor  to 
charge  in  equity  a  married  woman's  equitable  separate  estate  in 
lands  (apart  from  charging  her  personally)  is  to  be  determined 
by  the  lex  situs  of  the  land,  regardless  of  the  locality  of  the 
debt.  Such  a  claim  on  the  part  of  the  creditor  is  practically 
the  assertion  of  a  lien,  created  as  to  the  wife  in  invitam ;  and 
the  effect  of  a  lien  upon  land,  as  well  as  the  capacity  to  create 
such  a  lien,  since  it  affects  the  title  to  the  land,  is  to  be  gov* 
erned  by  the  lex  situs." 

So  also  the  marital  rights  of  the  husband  or  wife  in  the  lands 
of  the  consort,  such  as  dower  or  curtesy  under  the  common  law 
system,  community  rights  under  the  civil  law,  or  other  rights 
of  a  similar  nature  created  by  the  statutes  of  particular  states, 
will  be  regulated  by  the  lex  situs  of  the  land  in  question,  and 
not  by  the  law  of  the  parties'  domicil,  nor  by  that  of  the  place 
where  the  marriage  was  contracted.**  And  the  effect  of  a  divorce 
of  the  parties  upon  their  marital  rights  in  the  lands  of  the  con- 
sort will  be  governed  by  the  same  law,  regardless  of  the  law  of 
the  place  of  divorce, '^^  although  the  validity  of  the  divorce  itpelf 
will  be  determined  upon  entirely  different  principles. '^ 

§  13.  Meaning  of  "  Immovable  Property  "  in  Private  Inter- 
national  La'w.  —  In  the  previous  sections  the  term  "immovable 
property"  has  been  used  as  synonymous  with  "real  property," 
and  for  the  most  part  they  may  be  used  interchangeably.     In- 

w  Bank  v.  Williams,  46  Miss.  618,  12  Am.  Rep.  319;  Wicks  v.  Dawson, 
42  W.  Va.  43,  24  S.  E.  587;  La  Selle  v.  Woolery,  14  Wash.  70,  44  Pac.  115, 
32  L.  R.  A.  75  ;  Johnston  v.  (Jawtry,  11  Mo.  App.  322 ;  Cochran  v.  Benton, 
126  Ind.  58,  25  N.  E.  870;  Swank  v.  Hufnagle,  111  Ind.  453,  12  N.  E.  303. 
But  see  Story,  Confl.  L.  §§  266,  267,  268  ;  Spearman  v.  Ward,  114  Penn.  St. 
634,  8  Atl.  430.  These  authorities  regard  the  charge  upon  the  land  as  a  part 
of  the  married  woman's  obligation,  and  governed  by  the  lex  solutionis  of  her 
contract. 

20  Lamar  v.  Scott,  3  Strob.  L.  (S.  C. )  562 ;  Staigg  v.  Atkinson,  144  Mass. 
564,  12  N.  E.  354  ;  Kneeland  v.  Ensley,  Meigs  (Tenn.),  620,  33  Am.  Dec.  168; 
Richardson  v.  DeGiverville,  107  Mo.  422,  17  S.  W.  974,  977. 

»i  Barber  v.  Root,  10  Mass.  260  ;  Ross  v.  Ross,  129  Mass.  243,  248,  37  Am. 
Rep.  321;  Harding  v.  Alden,  9  Greenl.  (Me.)  140,  23  Am.  Dec.  549;  McGill 
V.  Doming,  44  Ohio  St.  645,  11  N.  E.  118,  123 ;  HUbiih  «.  Hattel,  145  InA 
69,  33  L.  R.  A.  783,  787. 

32  See  post,  S§  89  et  seq. 


§13  WHAT  ABE  IMMOVABLES.  39 

deed  it  may  be  postulated  that  all  such  property  as  at  oommon 
law  was  real  estate  is  to  be  classed  as  immovable  property.^ 
But  the  reverse  of  this  is  not  always  true.  It  is  the  quality  of 
immovability  which  international  law  looks  to.  Thus,  terms  for 
years  or  leasehold  estates  constitute  immovable  property,  and 
yet  at  common  law  they  are  to  be  deemed  personalty.  From 
the  standpoint  of  international  law,  these  interests,  according 
to  the  better  opinion,  are  to  be  classed  as  immovables,  to  be 
regulated  by  the  lex  situs  of  the  land.*  On  the  other  hand, 
property  may  be  movable  (following  the  owner),  though  con- 
sidered in  the  State  where  it  is  situated  as  real  property  for 
some  purposes.' 

In  any  event,  it  is  universally  admitted  that  each  State  may 
impress  upon  all  property  within  its  limits  whatsoever  character 
it  sees  fit,  and  that  character  will  attach  to  it  everywhere,  as 
long  as  the  property  remains  within  that  jurisdiction.  The  lex 
situs  will  determine  what  is  or  is  not  to  be  considered  real  or 
immovable  property  so  as  to  possess  a  locality  of  its  own.*  But 
if  personalty  has  impressed  upon  it  by  the  law  of  its  actual  situs 
the  character  of  real  estate,  as  was  sometimes  the  case  in  South- 
ern States,  prior  to  the  war,  with  respect  to  slaves,  and  such 
property  is  afterwards  removed  to  another  State  by  whose  law  it 
is  to  be  regarded  as  persoiialty,  the  latter  character  is  deemed  to 
have  been  imposed  upon  it  from  the  time  of  the  removal.* 

1  Story,  Confl.  L.  §  447. 

2  Dicey,  Confl.  L.  72  ;  Whart.  Confl.  L.  §§  286,  287;  Sneed  v.  Ewing, 
5  J.  J.  Marsh.  (Ky.)  460,  22  Am.  Dec.  41,  58,  59,  60.  But  see  Despard  v. 
ChurchUl,  53  N.  Y.  192, 

8  Sneed  v.  Ewing,  5  J.  J.  Marsh.  (Ky.)  460,  22  Am.  Dec.  41,  56,  61; 
McCoUum  V.  Smith,  Meigs  (Tenn.),  342,  33  Am.  Dec.  147,  148.  In  the  first 
case,  a  testator  domiciled  in  Indiana  owned  slaves  and  other  property  in  Ken* 
tucky.  The  Kentucky  law  declared  slaves  descendible  to  the  heirs  like  land, 
but  the  court  held  the  will  to  be  governed  by  Indiana  law  (lex  domicilii). 

♦  Chapman  v.  Robertson,  6  Pai.  Ch.  (N.  Y. )  627,  630,  31  Am.  Dec.  264 ; 
Newcomer  v.  Orem,  2  Md.  297,  56  Am.  Dec.  717,  718  ;  Lamar  v.  Scott, 
3  Strob.  L.  (S.  C.)  562;  Guillander  v.  HoweU,  35  N.Y.  657,  663;  McCollum 
r.  Smith,  Meigs  (Tenn. ),  342,  33  Am.  Dec.  147,  148 ;  Kneeland  v.  Enslejr, 
Meigs  (Tenn.),  620,  33  Am.  Dec.  168,  169.  See  Union  Bank  v.  Hartwell, 
84  Ala.  379,  4  So.  156,  157;  Story,  Confl.  L.  §  447. 

'  Minor  v.  Cardwell,  37  Mo.  350,  90  Am.  Dec.  390.    The  rents  and  profits 


40  WHAT  AKE  IMMOVABLES.  §  13 

If  the  owner  of  land  directs  his  lands  to  be  sold  and  con- 
verted into  personalty,  the  question  whether  the  principle  of 
equitable  conversion  will  apply  so  as  to  convert  it  instanter  into 
personalty,  or  whether  it  shall  remain  land,  will  depend  upon 
the  lex  situs  of  the  land.®  On  the  other  hand,  should  a  testator, 
domiciled  in  one  State,  by  his  will  direct  personalty  to  be  in- 
vested in  land,  so  that  an  equitable  conversion  into  land  takes 
place,  the  essential  validity  of  the  trusts  or  provisions  of  the 
will  should  be  controlled,  not  by  the  law  of  the  testator's  domi- 
cil  (as  if  it  were  a  will  of  personalty'),  but  by  the  lex  situs  of 
the  land  actually  purchased  under  the  directions  of  the  will.' 
But  in  the  latter  case,  the  question  whether  in  the  first  instance 
there  is  an  equitable  conversion  of  the  money  into  land  must  be 
decided  in  accordance  with  the  law  of  the  testator's  domicil,  for 
that  is  the  law  by  which  his  will  is  to  be  interpreted.*  Hence 
also  the  question  whether  or  not  the  testator  had  the  legal  capa- 
city to  make  the  will  is  to  be  determined  by  the  law  of  his 

of  lands  (already  accrued)  are  personal  property,  and,  like  other  personalty, 
are  legally  situate  with  the  owner.  Cameron  v.  Watson,  40  Miss.  191,  208  ; 
Wood  V.  Wood,  5  Pai.  Ch.  (N.  Y.)  596,  605,  28  Am.  Dec.  45L 

«  Curtis  V.  Hutton,  14  Ves.  537;  Hawley  v.  James,  7  Pai.  Ch.  (N.  Y.)  213, 
32  Am.  Dec.  623,  625 ;  Newcomer  v.  Orem,  2  Md.  297,  56  Am.  Dec.  717, 
718-19  ;  Chamberlain  v.  Chamberlain,  43  N.  Y.  424,  432^;  Hope  v.  Brewer, 
136  N.  Y.  126;  Hobson  v.  Hale,  95  N.  Y.  588  ;  Bible  Society  v.  Pendleton, 
7  W.  Va.  79  ;  Ford  v.  Ford,  80  Mich.  42,  44  N.  W.  1057;  Penfield  v.  Tower, 
1  N.  D.  216,  46  N.  W.  413. 

t  Post,  S  144, 

*  Ford  r.  Ford,  80  Mich.  42,  44  N.  W.  1057;  Penfield  v.  Tower,  1  N.  D. 
216,  46  N.  W.  413.  But  see  Wood  v.  Wood,  5  Pai.  Ch.  (N.  Y.)  596,  28  Am. 
Dec.  451,  in  which  it  was  held  that  a  will  made  by  a  citizen  of  New  York, 
directing  his  personalty  to  be  invested  in  Ohio  lands  upon  trusts  violating  the 
New  York  law  against  perpetuities,  must  be  governed  by  New  York  law.  It 
might  well  be  asked.  Why  ?  If  the  provisions  of  the  will  had  been  carried 
out,  the  money  would  have  gone  to  the  person  in  Ohio  from  whom  the  land 
there  was  purchased,  and  the  land  would  have  been  in  Ohio.  Of  what  interest 
could  it  be  to  New  York  whether  or  not  Ohio  property  was  held  in  perpetuity  ! 
This  case  seems  to  have  been  tacitly  overruled  by  the  later  New  York  cases. 
Thus,  it  is  said  in  Chamberlain  v.  Chamberlain,  43  N.  Y.  424,  434:  "It  is  no 
part  of  the  policy  of  New  York  to  interdict  perpetuities  or  gifts  in  mortmaio 
in  Pennsylvania." 

•  See  post,  §§  145  et  seq. 


§  14       LEX  8ITUS   WHEN  APPLIED   TO   MOVABLES.  41 

domicil,  not  the  lex  situs  of  the  land  into  which  he  directs  his 
money  to  be  converted.  For  unless  the  will  is  a  valid  will  of 
the  personalty,  the  conversion  into  land  cannot  take  place." 

§  14.  Application  of  Lex  Sitas  to  Transactions  relating  to 
Movable  Property.  —  It  is  a  general  principle  of  private  inter- 
national law  that  movable  property,  such  as  chattels  and  choses 
in  action,  are  to  be  considered  in  contemplation  of  law  as  situ- 
ated with  the  owner,  regardless  of  their  actual  locality.  The 
maxim  "mobilia  personam  sequuntur"  applies  very  generally; 
so  that  no  matter  where  the  chattels  may  be  actually  situated, 
their  legal  situs  follows  the  situs  of  the  owner  himself.^ 

But  if  the  movables  are  situated  in  one  State  and  the  owner 
has  his  situs  in  another,  transfers  may  be  made  by  him,  the 
enforcement  of  which  may  contravene  the  interests  or  policy  of 
the  State  where  the  property  is  situated,  or  may  work  a  wrong 
upon  its  people,  or  may  be  contrary  to  its  views  of  morality. 
These  are  the  very  cases  which  constitute  exceptions  to  the 
operation  of  a  proper  law.*  Hence  if,  under  such  circumstances, 
it  is  attempted  to  enforce  the  transfer  in  the  State  where  the 
property  is  actually  situated  (and  such  questions  will  in  general 
arise  there)  that  State  becomes  the  forum,  and  the  lex  fori 
will  be  substituted  for  the  proper  foreign  law  (the  law  of  the 
situs  of  the  owner),  in  accordance  with  the  principles  already 
noticed  in  discussing  these  exceptions.  It  therefore  frequently 
comes  about,  where  there  is  a  litigation  over  the  transfer  of 
movables  situated  in  the  State  where  the  suit  is  brought,  that 
the  lex  fori,  not  the  law  of  the  owner's  situs,  will  control. 
Furthermore,  in  such  cases  the  litigation  is  almost  always 
based  upon  one  or  the  other  grounds  of  exception  above  men- 
tioned, and  if  the  existence  of  the  exceptional  circumstances  is 

10  Post,  §  70. 

1  The  term  "  lex  situs  "  when  applied  to  movables  does  not  generally  mean 
the  law  of  the  legal,  but  of  the  actual,  situs  of  the  property.  For  a  full  dis* 
cussion  of  the  situs  of  personalty,  and  the  law  governing  transactions  con- 
nected therewith,  see  post,  §§  120  et  seq.  The  distinction  between  the  actual 
and  the  legal  situs  of  the  owner  will  be  noted  hereafter.  Post,  §§  18  et  seq, 
120  et  seq. 

2  Aut«,  §§  6,  7,  8,  9. 


42  LKX  SITUS   WHEN   APPLIED   TO   MOVABLES.        §  14 

established,  the  law  of  the  actual  situs  of  the  personalty  will 
usually  prevail  over  the  law  of  the  owner's  situs  (the  proper 
law).' 

But  it  cannot  he  too  carefully  observed  that  this  result  is  not 
due  to  any  inherent  force  of  the  lex  situs  of  the  personalty,  as 
such,  but  because  it  is  in  general  also  the  lex  fori.  There  is, 
in  the  last  analysis,  in  respect  to  personalty,  no  such  thing  as 
the  "lex  situs,"  apart  from  the  lex  situs  of  the  owner.  It  is 
only  where  the  actual  situs  of  personalty  is  the  forum,  that 
it  assumes  any  importance  in  private  international  law.*  In 
those  cases  (so  numerous  as  almost  to  obscure  the  general  rule) 
where  the  law  of  the  actual  situs  of  personalty  does  control,  it 
is  because  of  the  effect  given  to  it  as  the  lex  fori.  Hence,  if 
the  litigation  takes  place  in  the  domicil  of  the  owner,  or  in  any 
state  other  than  that  of  the  actual  situs  of  the  property,  the 
situs  and  the  forum  are  no  longer  identical,  and  the  grounds  for 
the  enforcement  of  the  lex  situs  disappear. 

These  principles  have  sometimes  escaped  the  attention  of  the 
courts  and  text  writers,  so  that  the  proposition  is  frequently 
stated  that  **the  lex  situs  controls  the  transfer  of  movables."  ' 

*  All  this  will  be  explained  more  fully  hereafter.  Post,  §§  120,  129,  182, 
134,  135. 

*  For  purposes  of  jurisdiction  movables  must  always  be  considered  as 
situated  withiu  the  territory  where  they  actually  are.  To  hold  otherwise 
would  be  to  impeach  the  sorereignty  of  that  State  over  everything  within  its 
borders.  The  point  maintained  in  the  text  is  not  that  movables  may  not 
possess  an  actual  situs  apart  from  the  owner,  but  that  there  is  no  such  thing 
as  a  substantive  "lex  situs"  in  such  cases,  as  there  is  in  the  case  of  real 
property. 

6  See  Guillander  v.  Howell,  35  N.  Y.  657.  Mr.  Wharton  takes  this  posi- 
tion unreservedly.  Whart.  Confl.  L.  §§  298  et  seq.  In  defence  of  this  view 
he  says  (§  299) :  *'  If  it  is  the  domicil  of  the  owner  which  is  to  decide,  it 
becomes  a  difficult  and  sometimes  insoluble  question  to  determine  who  this 
owner  is.  An  action  is  brought  to  decide  as  to  the  ownership  of  a  chattel. 
The  litigants  have  different  domicils  ;  and  if  the  article  in  dispute  is  to  be 
subjected  to  the  owner's  domicil,  the  question  as  to  who  is  the  owner  not 
being  yet  decided,  the  suit  has  to  be  stopped  at  the  outset  from  inability  to 
determine  how  it  shall  be  tried."  It  is  manifest  that  the  case  put  by  Mr. 
Wharton  is  not  one  of  substantive  law,  but  of  jurisdiction.  It  is  not  denied 
that  for  such  a  purpose  a  chattel  has  a  situs  of  its  own.    In  no  case  could  a 


§  15  SUBSEQUENT   CHANGE  OP  SITUS.  48 

It  will  do  so  where  the  situs  is  also  the  forum,  provided 
grounds  exist  (as  they  frequently  will)  for  the  operation  of 
any  of  the  exceptions  already  discussed,  but  not  necessarily,  nor 
generally,  in  other  cases. 

§  15.  Effect  of  Transactions  completed  and  perfected  un- 
der Proper  Law  not  generally  altered  by  Subsequent  Change 
of  Situs. — Before  concluding  the  discussion  of  these  general 
exceptions  to  the  operation  of  a  proper  law,  it  will  be  well 
(even  though  we  must  anticipate  some  general  principles)  to 
call  attention  to  a  point  which  will  often  necessitate  some 
modification  of  the  propositions  laid  down  in  the  preceding 
sections. 

Courts  will  be  reluctant  jthnngh  th?y  will  not  always  rgfnp") 
to  apply  these  exceptions  to  a  transf'^^^^^i  wTiioTi  Tiaa  htyn 
validly  fjite^'"'^  "^^"  m^Hor  ifa  prnppr  ]p.w,  and  has,  under  that 
law,  been  once  valid  as  against  the  entire  world,  merely  because. 
by  some  subxf.qup.nt  r.hange  of  situs,  the  transantinn  ban  mmr- 
under  tbfi  d<;>mininn  of  the  law  of  some  other  State,  wbinh  rpt-n- 
ders  it  void  or  voidable.  In  such  a  case  the  courts  of  the  forum 
will  not  so  readily  substitute  the  lex  fori  for  the  proper  law, 
and  will  usually  refuse  to  do  so  altogether,  except  in  those  cases 
where  the  lex  fori  is  expressly  prohibitory  of  the  enforcement 
of  such  transactions,  even  when  entered  into  abroad,  or  unless 
the  policy  of  the  forum  or  the  possible  injury  to  its  people  is  of 
the  most  pronounced  character.^ 

judgment  for  a  specific  chattel  be  given  in  any  other  State  than  that  wherein 
it  is  actually  situated,  for  the  judgment  is  in  rem,  and  the  court  must  have 
jurisdiction  over  the  res.  But  it  is  one  thing  to  say  that  the  courts  of  the 
actual  situs  alone  can  have  jurisdiction  to  determine  the  title  to  a  chattel, 
and  quite  a  different  thing  to  say  that,  having  jurisdiction,  they  must  deter- 
mine that  question  in  accordance  with  their  own  substantive  law,  or  to  say 
that  the  courts  of  another  State  in  which  the  validity  of  such  title  comes 
collaterally  into  question  must  be  governed  by  the  law  of  the  actual  situs. 
See  Mason  v.  Beebee,  46  Fed.  556. 

1  See  Kanaga  v.  Taylor,  7  Ohio  St.  134,  70  Am.  Dec.  62  ;  Homthall  v. 
Burwell,  109  N.  C.  10, 13  S.  E,  721  ;  Thuret  v.  Jackson,  7  Mart.  (La.)  318  ; 
Langworthy  v.  Little,  12  Gush.  (Mass.)  109  ;  Bank  v.  Lee,  13  Pet.  107  ; 
Edgerly  v.  Bush,  81  N.  Y.  199  ;  Miller  v.  Miller,  91  N.  Y.  315  ;  Phillips  v. 
Gregg,  10  Watts  (Penn.),  158,  36  Am.  Dec.  168  ;  Barker  v.  Stacy,  25  Miss.  477; 


44  SUBSEQUENT   CHANGE  OF   SITUS.  §  15 

One  of  the  most  prominent  instances  of  the  application  of 
this  principle  occurs  in  the  case  of  qualified  transfers  of  movable 
property,  for  example,  a  chattel  mortgage,  where  the  chattels 
mortgaged  are  situated  at  the  time  in  the  place  of  transfer,  but 
are  subsequently  removed  to  another  State,  by  whose  laws  the 
mortgage  is  invalid  as  against  creditors  of  the  mortgagor, 
though  valid  as  against  the  world  by  the  law  of  the  State  where 
the  mortgage  was  executed  and  the  chattels  were  at  the  time 
situated.  In  such  case,  the  transaction  has  been  completed 
under  the  law  of  the  first  State,  all  the  requirements  of  its  law 
(the  "proper  law"  at  the  time)  have  been  complied  with,  and 
the  parties  have  been  vested  with  a  perfect  title,  not  only  as 
between  themselves,  but  as  to  third  parties.  This  title  should 
not  be  divested  merely  by  reason  of  the  fact  that  the  chattels 
thus  transferred  are  subsequently  brought  under  a  new  juris- 
diction, at  least  if  this  be  done  without  the  consent  of  the 
mortgagee.^ 

Thus,  in  Kanaga  v.  Taylor,  L-the-plaiatifE  solda  piano  in 
New  York_to~G~wEo  there  executed  a  chattel  mortgage  lipon  it 
to  secure  the  unpaid  purchase  money.  The  mortgagewas  re- 
corded in  New  York  as  that  law  directedTand  waS  there  valid 


Wood  V.  Wheeler,  111  N.C.  231,  16  S.  E.  418  ;  Cummington  v.  Belchertown, 
149  Mass.  223,  227,  21  N.  E.  435  ;  Crapo  v.  Kelly,  16  Wall.  610,  622  ;  Pond 
V.  Cooke,  45  Conn.  126,  29  Am.  Rep.  668 ;  Chicago,  etc.  R.  R.  Co.  v.  Packet 
Co.,  108  111.  317,  48  Am.  Rep.  557  ;  Cagill  v.  Wooldridge,  8  Baxt.  (Tenn.) 
580,  35  Am.  Rep.  716  ;  Richardson  v.  Shelby,  3  Okl.  68,  41  Pac.  378 ;  Craig 
V.  Williams,  90  Va.  500,  505  ;  Bank  v.  Hill,  99  Tenn,  42,  41  S.  W.  349  ; 
Handley  v.  Harris,  48  Kan.  606,  29  Pac.  1145  ;  Stirk  v.  Hamilton,  83  Me. 
524,  22  AtL  391  ;  Ames  Iron  Works  v.  Warren,  76  Ind,  51 2,  40  Am.  Rep.  258. 

«  See  post,  §  132  ;  Kanaga  v.  Taylor,  7  Ohio  St.  134,  70  Am.  Dec.  62  ; 
Handley  v.  Harris,  48  Kan.  606,  29  Pac,  1145  ;  Hornthall  v.  Burwell,  109  N.  C. 
10,  13  S.  E,  721,  722;  Thuretv.  Jackson,  7  Mart.  (La.)  318  ;  Craig u.  Williams, 
90  Va.  500,  505 ;  Crapo  v.  Kelly,  16  Wall.  610,  622  ;  Bank  v.  Lee,  13  Pet. 
107  ;  Langworthy  v.  Little,  12  Cash.  (Mass.)  109;  Edgerly  v.  Bush,  81  N.  Y. 
199 ;  Martin  v.  Hill,  12  Barb.  (N.  Y.)  631  ;  Barker  v.  Stacy,  25  Miss.  477  ; 
Cagill  V.  Wooldridge,  8  Baxt.  (Tenn.)  580,  35  Am.  Rep,  716.  But  see  Corbett 
V.  Littlefield,  84  Mich.  30,  47  N.  W.  581,  It  is  otherwise  if  the  transaction 
be  not  completed  before  the  removal  of  the  goods.  Cronan  v.  Fox,  50  N,  J,  I^ 
417,  14  Atl.  119. 

8  7  Ohio  St.  134.  70  Am.  Dec.  62. 


§  15  SUBSEQUENT  CHANGE   OF   SITUS.  AH/^^^^ 

as  against  the  world^  Ct  aftfirwarHs  carriftiii  the  piano  taj/^^  . 
Ohio  and  pledged^itllflL^^  to  secure  a  loan.  The  New  York  /-f -^ 
mortgage  was  not  recorded  in  OhioT  and  M  (a  residenroT'Ofaio') 
had  no  notice_of_the--incumhraiicgi__M8old  the  piano  to  the 
defendant,  who  was  also  a  citizen  ofOhio7~an3~WhD-inrew 
nothing  of  the"  New  York  lien.  Though  the  law  of  Ohio  re- 
quiring  the.j:ecordation  of  chattel  mortgages  was  not  complied 
with,  the  court  held  the  plaintiii's  claim  to  Be"p5ramuuul. — — 

The  same  principle  has  heen  applied  in  regard  to  the  title  of 
receivers  and  assignees  for  the  benefit  of  creditors.  If  such 
title  has  once  been  fully  perfected  under  the  proper  law  as 
against  the  world,  a  subsequent  removal  of  the  chattels  to  a 
State  by  whose  law  the  title  of  the  receiver  or  assignee  would 
not  be  good  against  creditors,  will  not  divest  the  title  once 
vested.* 

In  Pond  V.  Cooke,'  a  manufacturing  corporation  in  New 
Jersey  had  contracted  to  build  a  bridge  in  Connecticut.  The 
corporation  became  insolvent  and  a  receiver  was  appointed  by  a 
New  Jersey  court,  who  purchased  iron  with  the  funds  in  his 
hands  and  sent  it  on  from  New  Jersey  to  Connecticut  to  com- 
plete the  bridge.  Connecticut  creditors  of  the  corporation 
attached  the  iron  after  it  reached  that  State.  But  the  Con- 
necticut court  dismissed  the  attachment  on  the  ground  that  the 
receiver's  title  to  the  iron  was  complete  as  against  all  persons 
in  New  Jersey,  where  he  was  appointed  and  first  held  possession 
of  the  iron,  and  that  the  title  once  thus  fully  vested  in  him 
should  not  be  divested  by  merely  sending  the  goods  to  another 
State. 

But  it  must  be  remembered  that  this  principle  is  applicable 
only  in  those  cases  where  the  transaction  is  perfected  and  com- 

*  Pond  V.  Cooke,  45  Conn.  126,  29  Am.  Rep.  668  ;  Chicago,  etc.  R.  R.  Co. 
V.  Packet  Co.,  108  111.  317,  48  Am.  Rep.  557  ;  Cagill  v.  Wooldridge,  8  Baxt. 
(Tenu.)  580,  35  Am.  Rep.  716 ;  Crapo  v.  Kelly,  16  Wall,  610,  622  ;  Cook  v. 
Van  Horn,  87  Wis.  291,  50  N.  W.  893  ;  May  v.  Wannemacher,  111  Mass. 
202,  209 ;  Bank  v.  Hill,  99  Tenn.  42,  41  S.  W.  349.  But  see  Walworth  v. 
Harris,  129  U.  S.  355  ;  Donald  v.  Hewitt,  33  Ala.  534,  73  Am.  Dec.  431.  In 
both  these  cases  the  lien  was  imposed  by  law,  not  by  agreeaent. 

5  45  Conn.  126,  29  Am.  Rep.  668. 


46  SUBSEQUENT  CHANGE  OF   SITUS.  §  15 

pleted  before  the  property  becomes  subject  to  the  new  jurisdic* 
tion.  This  will  not  be  the  case  if  the  property,  at  the  time  of 
the  transfer,  is  situated  in  the  latter  jurisdiction.  Here  third 
persons,  resident  in  the  State  where  the  chattels  are  situated 
(and  in  some  cases  though  uot  residing  there),  may  justly  claim 
that  as  to  them  the  title  has  not  completely  passed  out  of  the 
original  owner  until  the  law  of  the  actual  situs  of  the  chattels 
has  also  been  complied  with." 

Another  prominent  example  of  this  principle  may  be  seen  in 
the  rules  for  the  determination  of  the  law  governing  a  person's 
status.  Once  permanently  fixed  by  the  proper  law,^  it  is  not  in 
general  altered  by  any  subsequent  change  of  situs  on  the  part 
of  the  individual.  Thus,  if  one  be  born  a  bastard,  and  is  sub- 
sequently legitimated  under  the  proper  law  by  the  intermarriage 
of  his  parents,  his  status  as  a  legitimated  child  becomes  perma- 
nent, and  will  not  be  altered  by  the  assumption  of  a  new  situs, 
though  by  the  law  of  the  latter  a  subsequent  intermarriage  of 
the  parents  does  not  legitimate,' 

So  also,  if  a  marriage  is  valid  by  the  proper  law,  it  will  not 
in  general  be  rendered  invalid  by  a  subsequent  removal  to  a 
State  by  whose  laws  such  marriages  are  invalid.  Thus  in  State 
V.  Ross,'  a  white  woman,  domiciled  in  North  Carolina,  went 
into  South  Carolina  to  marry  a  negro  resident  there.  They 
were  married  there  and  lived  there  for  several  years,  when  they 
removed  to  North  Carolina.  Upon  a  prosecution  in  North 
Carolina  for  lewdness,  under  a  statute  of  that  State  absolutely 
prohibiting  the  marriage  of  a  white  person  and  a  negro,  it  was 

«  These  are  the  exceptional  cases  already  alluded  to,  in  which  the  lex  fori 
will  prevail  over  the  proper  law.  The  cases  illustrating  this  principle  are 
very  numerous,  and  are  collected  hereafter.  See  post,  §§  129,  134,  135.  Ref- 
erence is  here  made  to  a  few  only.  Green  v.  Van  Buskirk,  5  Wall.  307 ; 
Guillander  v.  Howell,  35  N.  Y.  657  ;  Faulkner  v.  Hyman,  142  Mass.  53  ; 
Catlinv.  Plate  Co.,  123  Ind.  477,  8  L.  R.  A.  62;  Sheldon  v.  Wheeler,  32 
Fed,  773  ;  Sturtevant  v.  Armsby  Co.,  66  N,  H,  557,  23  Atl.  368. 

^  What  is  the  proper  law  to  govern  the  status  will  be  seen,  post,  §§  68 
et  seq. 

*  Post,  §§  99  et  seq.  ;  Miller  v.  Miller,  91  N.  Y.  315 ;  Boss  v.  Ross,  129 
Mass.  243,  247,  256,  37  Am.  Rep,  321. 

•  76  N.  C.  242,  22  Am.  Rep.  678. 


§  15  SUBSEQUENT   CHANGE   OF   SITUS.  47 

held  that  since  both  the  parties  were  domiciled,  at  the  time  of 
the  marriage,  in  South  Carolina,  where  such  marriages  were  not 
illegal,  the  subsequent  removal  of  the  parties  to  North  Caro- 
lina, the  former  home  of  one  of  them,  should  not  affect  it. 
The  prosecution  therefore  failed. 

So  it  is  also  with  divorced  persons.  If  validly  divorced  in 
the  State  of  their  domicil,  their  status  as  single  persons  will 
thereafter  be  recognized,  whithersoever  they  may  remove.^" 

This  principle  explains  in  some  measure  the  reluctance  shown 
by  the  courts  to  substitute  the  lex  fori  for  the  proper  law  iu 
cases  where  they  are  called  upon  to  enforce  executory  contracts 
made  abroad.  The  violation  of  the  policy  of  the  forum  entailed 
by  an  enforcement  of  the  proper  law  must  be  very  pronounced 
to  induce  them  to  decline  its  enforcement.  Thus  executory 
contracts  relating  to  lotteries,  ^^  for  the  purchase  price  of  slaves,  ^* 
for  the  sale  of  intoxicating  liquor,^'  contracts  forbidden  by  the 
usury  laws  of  the  forum,"  and  many  other  contracts  of  a  similar 
kind,  have  been  enforced  in  States  whose  policies  strictly  pro- 
hibit such  dealings,  because  valid  by  the  proper  law.  Though 
not  expressly  stated  by  the  authorities,  it  is  believed  that  this 
reluctance  to  substitute  the  lex  fori  for  the  proper  law  in  these 
cases  is  due  to  the  principle  that  the  rights  of  the  parties,  once 
perfected  and  definitely  fixed  by  the  proper  law  controlling 
their  voluntary  agreement,  will  not  be  set  aside  without  the 
gravest  consideration  and  weighty  reasons,    even  though  the 

^  See  post,  §§  89  et  seq.  Other  examples  of  the  same  principle,  as  appli- 
cable to  status,  may  be  seen  by  reference  (to  the  following  cases :  Taylor  v. 
Sharp,  108  N.  C.  377,  IS  S.  E.  138 ;  Cnmmington  v.  Belchertown,  149  Mass. 
223,  227,  21  N.  E.  435  ;  Schluter  v.  Bank,  117  N.  Y.  125,  130,  22  N.  E.  572. 
This  principle  does  not  fully  apply  to  status  more  or  less  of  an  unperraanent 
cliaracter,  such  as  the  status  of  guardians,  administrators,  etc.  See  post, 
§§  102  et  seq,,  114  et  seq. 

"  Kentucky  v.  Bassford,  6  Hill  (N.  Y.),  526;  Mclntyre  v.  Parks,  3  Met. 
(Mass.)  207;  post,  §  178. 

^2  Greenwood  v.  Curtis,  6  Mass.  358,  4  Am.  Dec.  145  ;  Roundtree  v.  Baker, 
52  111.  24I,\4  Am.  Rep.  597;  Osborn  v.  Nicholson,  13  Wall.  654. 

13  Tegler  i^Snipman,  33  la.  194,  11  Am.  Rep.  118  ;  Hill  v.  Spear,  50  N.  tt 
253,  9  Am.  Re>^  205  ;  post,  §§  177,  178. 

"  Post,  §  179^ 


48  VALUE   OF   PKECEDENTS.  §  16 

general  policy  of  the  forum  be  violated  by  its  enforcement. 
Even  in  the  case  of  executory  contracts,  however,  there  are  some 
instances  in  which  the  lex  fori  may  be  substituted." 

§  16.  Value  of  Precedents  in  Private  International  Law. -~ 
The  exceptions  and  the  related  principles  discussed  in  the  pre- 
ceding sections  exert  a  very  marked  influence  upon  the  weight 
ordinarily  to  be  attached  to  precedents  and  decided  cases.  This 
effect  should  be  constantly  borne  in  mind  in  the  investigation 
of  the  authorities  upon  a  point  involving  the  conflict  of  laws. 
If  unnoticed,  it  may  result  that  decisions  will  be  cited  to  sustain 
propositions  which  in  reality  they  do  not  sustain. 

In  the  exceptional  cases,  the  court,  as  has  been  observed, 
generally  substitutes  the  law  of  its  own  State  (lex  fori)  for  the 
proper  law.  If  the  court  says  as  much  in  plain  terms,  naming 
the  exception  to  which  it  belongs,  and  giving  its  reasons  for 
believing  it  to  be  one  of  the  exceptional  cases,  no  confusion  of 
the  lex  fori  with  the  proper  law  is  apt  to  arise.  But  frequently 
the  courts  fail  to  make  the  distinction,  merely  holding  that  the 
case  is  governed  by  the  law  of  their  own  State,  without  even 
specifically  designating  it  the  lex  fori ;  sometimes  treating  it  as 
the  enforcement  of  the  proper  law,  instead  of  a  law  substituted 
for  the  proper  law;  sometimes  confusing  terms,  as  in  cases  of 
foreign  transactions  relating  to  personalty  situated  in  the  forum, 
where  they  designate  the  substituted  law  as  the  lex  situs  rather 
than  the  lex  fori,  in  which  aspect  it  should  be  considered,  as  we 
have  seen.^  The  consequence  of  all  this  confusion  is  of  course 
that  false  impressions  are  created  as  to  the  law  really  looked  to 
by  the  court  as  ruling  the  particular  case,  and  still  more  with 
respect  to  the  proper  law  which  should  rule  similar  instances 
where  the  circumstances  creating  the  exceptional  cases  are  not 
present.  This  has  been  a  most  fruitful  source  of  confusion  and 
error.  Some  hints  therefore,  drawn  from  experience,  touching 
the  points  to  be  looked  to  in  attaching  the  proper  weight  to 
authorities  in  these  investigations  will  not  be  amiss. 

1.    In  distinguishing  the  various  conflicting  cases,  care  must 

1*  Ante,  §  9.  See  Oscanyon  r.  Arms  Co.,  103  U.  S.  261.  See  also  post, 
§  152. 

1  Ante,  §  14. 


§  16  VALUE   OF   PRECEDENTS.  49 

be  taken  in  the  first  place  to  observe  in  what  State  the  suit  is 
brought,  for  the  determination  of  the  governing  law  in  a  given 
case  will  often  depend  upon  which  State  is  the  forum.* 

2.  This  point  must  be  observed  as  well  with  respect  to  federal 
courts  sitting  in  a  State  to  enforce  its  laws,  as  with  regard  to  the 
State  courts.' 

3.  After  ascertaining  and  carefully  noting  which  State  is 
the  forum,  observation  should  next  be  directed  to  the  facts  of 
the  case.  If  such  as  to  constitute  one  of  the  exceptions,  the 
decision  will  in  general  be  of  little  direct  authority  with  re- 
spect to  the  "proper  law  "  governing  such  transactions.  It 
is  only  a  direct  authority  for  the  application  of  the  lex  fori  in 
the  case  of  the  particular  exception  disclosed  by  the  facts  of  that 
particular  case.     The  rest  is  dictum,  more  or  less  valuable. 

4.  If  the  facts  in  the  case  under  investigation  do  not  disclose 
an  instance  of  the  operation  of  any  of  these  exceptions,  the  deci- 
sion is  a  direct  authority,  more  or  less  valuable,  touching  the 
"proper  law." 

5.  If  ♦ihere  be  disclosed  ground  for  the  operation  of  one  of  the 
exceptions,  but  the  court  enforces  a  foreign  law  (not  the  lex 
fori),  the  decision  is  direct  authority  of  a  very  strong  kind  to 
show  that  the  foreign  law  thus  enforced  is  the  ""proper  law." 

6.  The  weight  to  be  attached  to  a  particular  decision  will 
depend,  as  in  other  cases,  upon  the  character  of  the  court,  the 
care  bestowed  upon  the  opinion,  whether  it  is  decision  or  merely 
dictum,  its  date,  the  particular  facts  or  statutes  in  the  case,  etc. 

7.  In  examining  the  facts  of  the  case,  care  must  always  be 
taken  to  note  the  nature  of  the  transaction  in  detail,  to  observe 
what  are  the  various  foreign  elements  that  enter  into  the  case, 
which  of  these  are  given  weight  in  the  decision  and  which  are 

a  See  Armstrong  v.  Best,  112  N.  C.  59,  17  S,  E.  14  ;  Robinson  v.  Queen, 
87  Tenn.  445,  3  L.  R.  A.  214.  This  principle  should  also  be  borne  in  mind 
in  deciding  in  what  State  a  suit  of  this  nature  should  be  instituted. 

'  Hence  federal  decisions  are  as  much  authorities  ou  questions  of  the  con« 
flict  of  laws  as  are  the  State  courts.  For  example,  see  Swann  v.  Swann,  21 
Fed.  299  ;  Atherton  Co.  v.  Ives,  20  Fed.  894  ;  Bamett  v.  Kinney,  147  U.  S. 
476 ;  Cole  v.  Cunningham,  133  U.  S.  107,  129 ;  Bowles  v.  Field,  78  Fed.  742, 
743  ;  Smith  v.  Union  Bank,  5  Pet.  518;  Green  ».  Van  Buskirk,  6  "Wall.  307, 
812. 

4 


50  VALUE  OF   PBECEDSNTS.  {   16 

discarded.  Many  different  combinations  of  these  elements  may 
arise,  and  each  combination  may  cause  a  change  in  the  result. 
It  is  of  the  utmost  importance  therefore  to  note  what  combina- 
tion of  foreign  elements  exists  in  a  particular  case,  and  whether 
the  court  had  before  it  the  whole  combination,  in  making  its 
decision,  or  only  one  or  more  of  the  foreign  elements.  The 
value  of  the  decision  will  in  large  measure  depend  upon 
this.  Abundant  illustrations  of  these  principles  will  be  seen 
hereafter. 


I  17  IMPORTANCE  OP   SITUS.  61 

PART  II. 

SITUS  OF  THE  PERSON. 


CHAPTER   III. 

ACTUAL  SITUS  OF  THE  PERSON. 

S  17.    Importance  of  Situs  in  Private  International  Law.  ^ 

The  foundation  principle  of  the  Conflict  of  Laws  is  Situs. 
Every  element  in  every  transaction  known  to  the  law  has  a 
situs  somewhere,  and  the  law  of  that  situs  will  regulate  and 
control  the  legal  effect  of  that  element.  Not  only  is  this  true 
of  active  steps  taken  towards  the  completion  of  a  given  trans- 
action, but  it  is  equally  true  of  those  elements,  not  consisting  of 
acts  of  parties,  but  merely  acts  of  the  law,  or  of  passive  char- 
acteristics, legal  qualities,  or  disqualifications  inherent  in  the 
parties,  independently  of  their  own  will  or  in  spite  of  it.  For 
example,  in  the  case  of  an  executory  contract,  not  only  may  each 
active  step  in  the  transaction  —  the  making  of  the  contract,  the 
act  to  be  done  in  consideration  thereof,  and  the  performance  of 
it  —  have  a  separate  situs  of  its  own,  but  the  capacity  or  dis- 
qualification of  the  parties  to  enter  into  the  agreement  —  a  mere 
passive  quality  —  must  also  have  its  situs,  which  may  perhaps 
be  separate  from  all  the  rest.  These  passive  qualities  of  legal 
capacity  or  incapacity  inhere,  not  in  the  transaction  (in  general), 
but  in  the  person  of  the  party,  and  in  the  main  have  the  same 
situs  as  the  person  whose  capacity  is  in  question.^ 

Thus,  it  is  not  difficult  to  conceive  of  a  contract  made  by  A, 
of  New  York,  with  B,  of  Massachusetts,  entered  into  in  New 
Jersey,  to  be  performed  in  Maryland,  in  consideration  of  an  act 
to  be  performed  by  B  in  Pennsylvania.     We  may  even  go  fur* 

1  Post,  §§  69  et  seq. 


62  IMPOKTANCB   OP   SITUS.  §  17 

ther  and  suppose  the  consideration  for  A's  promise  to  be  an 
executory  contract  made  by  B  to  be  performed  in  Virginia. 

In  this  hypothetical  case  it  will  be  observed  that  many  dif- 
ferent States,  possessing  various  systems  of  law,  are  represented, 
and  each  may  be  the  situs  of  some  material  step  (active  or  pas- 
sive) connected  with  the  transaction.  A^s  capacity  to  contract 
has  its  situs;  B^s  capacity  to  contract  has  its  situs;  there  is  a 
situs  for  the  entry  into  the  contract;  another  for  the  considera- 
tion of  the  contract;  another  for  the  performance  of  the  contract. 
And  if  the  consideration  be  itself  executory  (as  where  B  makes 
a  promise),  there  may  be  a  separate  situs  for  the  formation  and 
for  the  performance  of  that  contract. 

Each  one  of  these  elements  may  have  a  separate  situs  and  be 
governed  by  a  different  law.  Each  such  element  must  be  upheld 
by  its  proper  law,  the  law  of  its  situs,  in  order  that  the  transac- 
tion as  a  whole  may  be  upheld.'  It  is  not  proposed  to  consider  at 
this  point  what  is  the  situs  of  each  of  these  elements.  A  com- 
plete answer  to  that  question  in  such  a  case  as  the  above,  and  in 
other  cases  of  which  this  is  but  a  sample,  would  constitute  a 
treatise  on  the  Conflict  of  Laws,  and  is  the  purpose  of  this  work. 
It  is  intended  here  merely  to  point  out  that  the  situs  of  each 
step  in  a  given  transaction  is  to  be  carefully  noted,  and  its  effect 
is  in  general  to  be  tested  by  the  law  of  that  situs.  The  com- 
plete transaction  being  made  up  of  all  these  various  elements, 
its  ultimate  validity  will  in  general  depend  upon  the  validity  of 
each  of  its  constituent  parts  (tested  by  its  proper  law).  If,  when 
so  tested,  each  element  is  valid,  then  the  transaction  as  a  whole 
will  be  valid;  but  if  one  or  more  of  the  essential  steps  be  in- 
valid, when  measured  by  its  proper  law,  neither  can  the  trans- 
action as  a  whole  be  in  general  sustained. 

Hence,  in  order  to  arrive  at  a  correct  solution  of  the  law 
which  is  to  govern  a  particular  transaction,  that  transaction 
must  be  resolved  into  all  its  essential  parts,  and  to  each  of 
these  parts  the  law  of  its  own  situs  must  be  applied. 

These  elements  of  a  given  transaction  may  be  active,  depend- 
ent upon  the  will  of  the  party  himself.     In  such  cases  he  may 

3  Subject  always  to  the  exceptions  given  in  Chapter  IL 


§  17  IMPORTANCE  OP  SITUS.  53 

perform  the  particular  act  or  not  as  he  pleases,  and  if  he  chooses 
to  do  the  act,  he  may  and  does  select  the  place  where  it  is  done. 
But  having  once  done  the  particular  act  at  the  place  selected, 
the  effect  of  that  act  must  in  general  be  determined  by  the  law 
of  the  place  where  it  is  done.  This  is  expressed  by  the  maxim 
"  locus  regit  actum."  The  party  should  not  be  permitted  to 
select  one  place  for  the  doing  of  the  act  in  question  and  then 
select  the  law  of  a  different  place  to  govern  that  act,  for  that 
would  be  to  subordinate  the  sovereignty  of  the  first  State  to  the 
will  of  the  individual.  He  cannot  thus  give  the  act,  by  the 
mere  exercise  of  his  will,  a  constructive  situs  which  it  does 
not  actually  possess. 

Other  elements  in  a  transaction  may  be  passive,  arising  by  act 
of  the  law.  The  capacity  of  a  party  to  do  an  act  or  receive 
a  benefit,  taxation  of  property,  the  succession  to  a  decedent's 
property,  adjudications  of  insolvency  or  bankruptcy,  marital 
rights,  etc.,  are  instances  where  elements  of  this  kind  occur. 
Such  elements  also  must  possess  a  situs  somewhere.  But 
when  the  law  acts,  it  must  either  act  upon  the  person  or 
upon  property.  If  upon  the  person,  the  act  of  the  law  will 
generally  have  the  same  situs  as  the  person;  for  if  the  person  be 
not  actually  or  constructively  within  its  jurisdiction,  the  act  of 
the  law  is  nugatory.  Wheiuacting  upf>Ti  tbp  pp.rsnp,  Jjift  law 
creates  a  stfituru  Hftnon  fihr  -litiin  of  a  itatni.  whose  law  will 
grfvvfirn  it,  ia  thft  sitna  of  the  person. 

If  f^^<^-//T.</^  a^fg  upon  property,  f.bft  situs  of  the  act  of  the 
law  fiillouia  thn  aitnn  of  tbo  pioppityj  in  otlin  words,  the  prop- 
erty  mufit  hnvff  itp  pitMP;  n^^tni^lly  i^r  in  rnnt'^mplation  of  law, 
within  the  iurisdictioTi  of  thn  Inw  purporting  to  act  upon  it. 
But  there  may  be  a  legal,  as  well  as  an  actual,  situs  of  property, 
at  least  in  case  of  personal  property,  the  actual  situs  not  being 
in  general  considered  save  in  the  exceptional  cases  mentioned  in 
the  previous  chapter.*  It  is  the  legal  situs  that  is  usually 
looked  to,  and  that  follows  the  situs  of  the  owner,  upon  the 
maxim  "  mobUia  personam  sequunturJ'  * 

These  are  the  basic  principles  upon  which  private  interna- 
tional law,  as  a  science,  is  founded.     But  in  their  application 

»  Ante,  §§  6.  7,  14. 


54  ACTUAL  SITUS   OF  THE   PEKSON.  §  18 

many  difficulties  and  much  confusion  among  the  authorities 
will  be  encountered,  not  only  in  determining  what  are  the  es- 
sential elements  of  a  given  transaction,  but  in  deciding  what  is 
their  proper  situs  when  ascertained. 

Since  the  situs  of  status  and  of  personal  property  generally 
follows  the  situs  of  the  party  to  whom  they  pertain,  in  order  to 
determine  the  law  which  governs  questions  relating  to  these 
matters  we  must  consider  what  is  the  situs  of  the  person. 

In  regard  to  contracts,  we  must  look  to  the  same  law  with 
respect  to  questions  of  capacity  (capacity  being  a  status'),  but 
with  regard  to  those  elements  which  consist  of  active  steps 
taken  by  the  parties  and  dependent  upon  their  own  will,  such  as 
the  entering  into  the  contract,  the  performance  of  it,  or  the  per- 
formance of  the  act  which  constitutes  the  consideration  therefor, 
we  must  determine  what  is  the  situs  of  each  particular  act  form- 
ing a  constituent  part  of  the  transaction. 

So  likewise,  in  regard  to  torts  and  crimes,  we  must  determine 
the  situs  of  the  tort  or  of  the  crime,  in  order  to  ascertain  the 
law  properly  applicable.*  And  so  it  is  also  with  respect  to 
remedies.' 

§  18.  Actual  Situs  of  the  Person.  —  It  seems  a  paradox  to 
say  that  a  person  may  occupy  two  places  in  space  at  the  same 
time.  Yet  under  the  rules  of  private  international  law  such  is 
the  case.  But  it  is  not  the  paradox  it  seems,  for  the  law  only 
admits  one  to  occupy  two  places  at  the  same  time  for  different 
pverposes,  —  never  for  the  same  purpose.  The  latter  principle 
prevents  the  confusion  of  applicatory  laws  that  would  otherwise 
result  from  the  former. 

The  law-assigns  to  every  man  immediately  upon  his  birth  and 
t,hrniig;hout  hia  life  a  situs  in  the  State  where  he  has  his  Jom i - 
oil,  whose  laws  are  those  to  which  primarily  he  owes  allegiance. 

*  Ante,  §  14  ;  post,  §§  120  et  seq.  We  will  see  in  the  following  sec- 
tions that  the  situs  of  the  owner  may  itself  be  either  actual  or  legal.  In 
regard  to  immovable  property,  the  actual  and  legal  situs  will  usually  cor- 
respond.    See  ante,  §  11. 

6  Post,  §  72. 

*  Post,  §§  195  et  seq.,  204.  But  in  the  case  of  crimes,  the  exception  re- 
lating to  penal  laws  applies  in  full  force.     Post,  §  203. 

*  Post,  §§  205  et  seq. 


§18 


ACTUAL   SITUS   OF   THE   PERSON. 


55 


In  order  that  ha  shnnTd  poaSftSS  ^^m  firim{o\'[^   if.    I'n    Tinf  nanoaqoyy 

that  heshould  actually  be  prfisftnt  t^fi  1 1'  il  itll  ti ii — iie-ixia,y 

actually  he  at  a  given  moment  in  one  State,  while  his  domicil 
is  in  another.  The  domicil,  then,  is  the  leffolsitua  of  the  imi- 
vj^TiiaTT'and  may^or  may  not  be  coincident  with  hja  n^tu"!  H^i^^•^ 
at  a  given  moment.  Tlie_^ctualsitus_of,J;^e_gei§onata  given 
moment  isThe  State  where,  at_that  mogafinfeL^e  isjidaiallj 
cally  pteseaL TZEEe^legalsitus  of  the  person  is  the  State  of  his 
domicil^—tjie  Statfi-^ol^is  permanehTresiHellce^^hetKer  He  is 
actually  present  there  or  not. 


Te  have  seen  that  there"^e  certain  cases  (transactions  touch- 
ing status  and  personal  property)  wherein  the  law  of  the  situs 
of  the  person  will  control.  Under  some  circumstances,  it  will 
be  the  law  of  the  actual  situs  of  the  person.  Under  others,  it 
will  be  the  law  of  his  legal  situs  or  domicil.  These  two  may 
coincide  in  a  given  case,  or  they  may  be  distinct.  In  the  latter 
case,  the  law  of  one  or  the  other  situs  may  govern  a  particular 
element  or  matter,  but  never  the  law  of  both.  In  ascertaining 
which  situs  should  furnish  the  law  to  govern  a  particular  matter 
properly  determinable  py  the  law  of  the  situs  of  the  person,  the 
same  diatinp.tiniL.must  be  made  as  was  noted  in  the  preceding  sec- 
tion between  active  or  voluntary  elements,  and  passwe  or  invot- 
untary  elflmftTifH,  nr  ai^r^h  as  are  created  by  the  law  itij(jll,  wilhuufc- 


the  exercise  of  the  party's  wjlV.  It  will  be  remembered,  as 
saw  in  the  last  section,  that  a  person's  status  is  the  creation  of 
the  law,  and  not  dependent  upon  his  will.  On  the  other  hand, 
the  disposition  or  transfer  of  his  personal  property  may  result 
merely  from  the  exercise  of  the  owner's  will,  as  in  case  of  a 
conveyance,  or  it  may  result  merely  from  the  act  of  the  law,  as 
in  the  case  of  the  succession  to  an  intestate's  personal  estate. 

If  a  person  domiciled  in  one  State  enters  actively  into  a  par- 
ticular trarigaY^finT^  in  g.Tir>tT^^T  Stflt»;  ^"  ^liP  dftlThpralifttyTrfmsftn 
for  the  purposes  of  that  transaction  to  submit  himself  and  it  to 
the  opera|tion_of_thelatter  law.  In  selecting  a  place  for  the 
performance  of  the  act  ^njgpiefltio";  ^'^  nolp/'ffl  jts  l^w  ur  tlu> 
governinglawj^to^hold  othftrwiaft  ^fmjjjhgtn  deny  to  that  State 
sovereignty  and  control  over  acts  taking  placeTHefe!  Justice  to 
the  partv  himself,  to  the  other  parties  to  the  transaction,  and  to 


56 


ACTUAL  SITUS   OF  THE   PERSON. 


§18 


the  State  where  it  is  entered  into,  requires  the  enforcement  of  its 
law  with  respect  thereto,  rather  than  the  law  of  the  legal  situs 
or  domicil,  which  has  no  force  ex  propria  vigore  outside  its  own 
limits,  and  which  the  party  himself  has  temporarily  renounced, 
so  far  as  that  transaction  is  concerned. 

This  is  the  natural  and  proper  view  for  the  courts  of  the  State 
where  the  transaction  occurs  or  of  a  third  State  to  take ;  but  it 
does  not  necessarily  follow  that  the  same  view  will  be  taken  by 
the  courts  of  the  party's  domicil,  if  in  entering  into  such  for- 
eign transaction  the  party  has  violated  its  law  or  policy.^ 

But  if  the  matter  in  question  (determinable  by  the  lex  situs 
of  the  person)  arises,  without  the  active  intervention  of  the 
party,  merely  as  a  creation  of  the  law,  while  he  is  thus  tempo- 
rarily in  a  State  other  than  the  State  of  his  domicil,  the  same 
reasoning  is  not  applicable.  The  laws  of  each  State  are  enacted 
primarily  for  the  benefit  of  its  own  citizens ;  and  to  impose  those 
laws,  except  where  the  welfare  of  the  State  demands  it,  as  in 
case  of  police  and  criminal  laws,  upon  the  citizens  of  other 
States  temporarily  there,  in  regard  to  matters  in  which  they 
have  not  voluntarily  submitted  themselves  to  those  laws,  would 
be  unjust  to  them  and  to  the  State  where  they  reside,  whose 
sovereignty  over  its  own  inhabitants  would  thus  be  denied. 

If,  for  example,  we  take  the__caap  of  a  transfRTL-ofjersonal 
property,  which  is  in  general  povernod  by-tha_law  of  the  situs 
of  the  owner,  and  suppose  that  the  transfer  occurs  while  the 
owner  is  inaTState^^ther  th5Sff~Eis  domicil,  the~~tf3iisfeir-will  be 
governed~Ty"  the  law  of  the"actu^  situs  of  the  owner j(the  lex 
loci  contractus)  or~15y"the"Tawj;>f  hia  lftga.1  gi't^ig_Qft-r  domicilii), 
accordjng^as  the  transfgrJsL-by^-ygluiitary  agreem«nt_on  the  part 
otthe  owner,  or  arises  by  operation  of  lawj_aghi  the  case  of  the 
succession  of  a  distnbutee^othe  personal  estateonhs^deceased 
intestate  owner*        " 

Matters  of  status  are  always  the  creatures  of  the  law,  being 
fixed  by  law,  independently  of  the  will  of  the  individual.  Hence 
we  should  expect  to  find  such  matters  always  regulated  by  the 
law  of  the  person's  legal  situs  or  domicil,  save  in  the  exceptional 

1  Post,§  §  72,  73. 

*  Post,  §§  128  et  seq.,  136  et  seq.,  139  et  seq. 


§  18  ACTUAL  SITUS   OF  THE  PERSON.  67 

cases  of  the  preceding  chapter.  And  such  is  the  general  rule.* 
But  even  in  respect  to  status  (the  status  of  capacity)  the  same 
principle  has  been  applied,  and  a  distinction  is  made  between 
the  law  governing  a  person's  capacity  to  do  a  voluntary  act, 
such  as  to  enter  into  a  contract,  and  his  capacity  in  respect  to 
involuntary  acts  or  matters  arising  by  operation  of  law,  such  as 
capacity  to  hold  property  under  a  conveyance  or  will.* 

In  conclusion,  it  may  be  said  that  there  is  usually  no  diffi- 
culty in  ascertaining  the  actual  situs  of  a  person  at  a  particular 
time.  It  is  a  mere  question  of  fact.  But  often  the  ascertain- 
ment of  the  domicil  or  legal  situs  of  the  person  is  not  so  easy. 
It  is  a  mixed  question  of  law  and  fact.  The  legal  rules  by  which 
the  domicil  is  determined  will  be  dealt  with  at  length  in  the 
succeeding  chapter. 

«  Post,  §§  68  et  seq. 

«  Post,  §§  70,  144 ;  Ross  r.  Ross,  129  Mass.  243,  246,  37  Am.  Rep.  321. 


58  DOMICIL,   NATIONAL  OE   MUNICIPAL.  §  19 


CHAPTER  IV. 

LEGAL  SITUS  OF  THE  PERSON,  OR  THE  DOMICIL. 

§  19.    Domicil,  National,   Quasi-National,   or    MunicipaL  — 

Mr.  Jacobs,  in  his  work  on  the  Law  of  Domicil,^  has  appropri- 
ately divided  Domicil  into  three  classes  —  (1)  The  national 
domicil,  representing  the  absolutely  sovereign  State  in  which 
one  may  be  domiciled;  (2)  tht  quasi-national  domicil,  repre- 
senting residence  in  a  State  which  is  not  wholly,  but  only 
partially  sovereign,  such  as  one  of  these  United  States;  and 
(3)  the  municipal  domicil,  representing  only  the  intra-State 
political  division,  such  as  a  county  or  city  within  a  State, 
which  is  not  sovereign  at  all. 

The  last  class  has  no  place  in  private  international  law,  but 
is  entirely  the  subject  of  the  municipal  law  of  the  State  where 
the  particular  county  or  city  is  located.  And  the  distinctions 
to  be  drawn  between  the  first  two  are  comparatively  slight  and 
unimportant.  Whether  the  particular  States  in  question  are 
wholly  or  only  partially  sovereign,  if  they  are  supreme  with 
respect  to  the  point  at  issue,  that  is  all  that  private  interna- 
tional law  requires.  If  the  law  of  the  domicil  of  a  party  is  to 
control,  it  is  usually  of  small  importance  whether  this  be  a 
national  or  a  quasi-national  domicil.  Occasionally  however 
distinctions  must  be  taken  between  them. 

It  follows  from  what  has  been  said  that  cases  deciding  ques- 
tions relating  to  municipal  domicil  should  be  accepted  with 
caution  as  authority  in  regard  to  matters  of  national  or  quasi- 
national  domicil.  The  former  is  the  subject  of  municipal  law 
only,  the  latter  of  private  international  law.  To  argue  from 
the   principles  of   municipal   law  to  those  of  private   interna' 

»  Jac.  Dom.  §  77. 


§  20       DOMICIL  DISTINGUISHED   FROM  RESIDENCE.  59 

tional  law  is  always  apt  to  be  misleading.  The  failure  to 
reoiember  this  fact  has  sometimes  led  to  serious  error.' 

§  20.  Domicil  distinguished  from  Mere  Residence.  —  Dom- 
xi\,  as  we  have  seen,  in  the  last  chapter,  is  to  be  distinguished 
from  the  actual  situs  of  a  person,  a  mere  temporary  locality  of 
existence  in  a  particular  State  at  a  particular  time. 

It  must  now  be  observed  that  domicil  is  also  to  be  distin- 
guished from  a  mere  residence,  of  a  temporary  character,  not 
intended  to  be  permanent.  Residence  in  a  State  is  usually 
said  to  be  necessary  to  domicil,  but  it  must  be  a  residence  of 
a  permanent,  not  of  a  temporary  or  limited,  character.  When 
the  term  "resident"  or  "residence"  is  used  in  connection  with 
private  international  law,  it  is  generally  used  in  the  sense  o* 
domicil,  though  not  always.^ 

The  Virginia  case  of  Long  v.  Ryan  *  is  a  good  illustration 
of  the  distinction  between  mere  residence  and  domicil.  lu  that 
case,  a  person  domiciled  in  Washington  came  to  Virginia  intend 
ing  to  remain  there  about  nine  months,  until  he  should  complete 
a  contract  into  which  he  had  entered,  proposing  afterwards  to 
leave  Virginia.  His  property  was  attached  in  Virginia  under  a 
statute  permitting  attachments  against  "  non-residents,"  but  the 
court,  notwithstanding  his  domicil  in  Washington,  held  him  to 
be  a  resident  of  Virginia,  and  dismissed  the  attachment. 

So  also  a  foreign_niiaiater-aetuaHy  residBS  or  is  personally 
present  at  the  court  Jo^ghich  ho  is  accrGditcd.-lbttt-his  legal 
residence^  and  domicil  are  in  his  own  country.  ^Ijoideed.,  by  the 
fip.tinnjfvfjRjtgrritnriality,  fhft  pla-cft  nf  biajcagidflnfiR-lq  a._part  of 
his  r>wT)  nmin try- It  iff  ^thffrwiHft  With  ^""fflllft* 

'  For  example,  with  respect  to  the  right  of  a  guardian  to  alter  the  ward's 
domicil.    See  post,  §  41. 

1  In  re  Wrigley,  8  Weud.  (N.  Y.)  134;  Frost  v.  Brisbin,  19  Wend,  11,  32 
Am.  Dec.  423  ;  Laugdon  v.  Doud,  6  Allen  (Mass.),  423,  83  Am.  Dec.  641  ; 
Allgood  V.  Williams,  92  Ala.  551,  8  So.  722  ;  Chitty  v.  Chitty,  118  N.  C.  647, 
82  L.  R.  A.  394 ;  Wood  v.  Boeder,  45  Neb.  311,  63  N.  W.  853  ;  Ayer  v. 
Weeks,  65  N.  H.  248,  18  Atl.  1108;  Long  v.  Ryan,  30  Gratt.  (Va.)  718; 
Tipton  V.  Tipton,  87  Ky.  243,  8  S.  W.  440.  See  Story,  Confl.  L.  §  4a 
bote  (c). 

«  80  Gratt.  718. 

«  Whart.  Confl.  L.  5  49  ;  Crawford  v.  Wilson.  4  Barb.  (N.  Y.)  50S. 


60       DOMICIL  DISTINGUISHED   FROM  NATIONALITY.      §  21 

So  it  is  with  students.  Though  resident  at  a  college  or  univer- 
sity for  the  period  necessary  to  complete  their  course,  they  are 
not  domiciled  there  unless  they  have  the  intention  to  remain 
there  permanently.  But  the  question  of  domicil  is  distinct 
from  the  right  of  suffrage.  The  latter  is  a  matter  of  munici- 
pal law,  and  is  subject  to  the  rules  prescribed  by  each  State 
within  its  own  borders.  If  those  laws  do  not  require  a  domicil 
as  a  condition  of  suffrage,  but  only  a  mere  residence,  a  student 
may  be  permitted  to  vote,  though  he  be  not  domiciled  in  the 
State.     Such  is  the  general  rule  in  the  United  States.* 

§  21.  Domicil  distinguished  from  Nationality  or  Citizen- 
ship. —  The  distinction  between  domicil  and  nationality  or 
citizenship  is  just  as  marked  as  that  which  exists  between 
domicil  and  residence.  A  person  may  be  a  subject  or  citizen 
of  one  country,  while  domiciled  in  another.^  Thus,  ^citizen 
of  France  may  qr-t.naTly  >><>  in  "I^pw  Vprk-  Tf  merely  ^assin^ 
throTigh~h6  has'only  his  actual  sitna  in  "N"ew  Yorli^_Tf  he  re- 
sides there,  with  the  intentiorrto  remain  for  a  limited  period, 
he  is  a  resident  of  New  York,  andi?7couple(i  with  the  residence, 
there  is  the  intentTon  to  remain^her£_germaiieutly  Oftor  an  un- 
limited period,  he  is  dqmiciled-iji^oyif  Yorky^y£iL^e_m^  all  the 
time  remain  a  ct^t'gew  of  France. 

But  it  must  be  observed  that,  so  far  as  citizens  of  the  United 
States  are  concerned,  the  rule  is  otherwise  as  between  the  States 
of  this  Union.  The  fourteenth  amendment  to  the  federal  con- 
stitution expressly  provides  that  ''all  persons  bom  or  natural- 
ized in  the  United  States,  and  subject  to  the  jurisdiction  thereof, 
are  citizens  of  the  United  States,  and  of  the  State  wherein  they 
reside  "  (that  is,  are  domiciled).  This  provision  establishes 
for  the  States  of  the  Union  the  rule  that  a  citizen  of  one  State, 

*  Whart.  Confl.  L.  §  48  ;  Opinion  of  the  Judges,  5  Met.  (Mass.)  587  ;  Fry's 
Case,  71  Penn.  St.  302;  Hart  ».  Lindsey,  17  N.  H.  235,  43  Am.  Dec.  602  ; 
Kelley  v,  Garrett,  67  Ala,  304  ;  Sanders  r.  (Jetchell,  76  Me.  158  ;  Vanderpoel 
V.  O'Hanlon,  53  la.  246,  36  Am.  Rep.  216  ;  Dale  v.  Irwin,  78  111.  170. 

1  Harral  v.  Harral,  39  N.  J.  Eq.  379,  51  Am.  Rep.  17,  21  ;  Raymond  v. 
Haymond,  74  Tex.  414,  12  S.  W.  90,  92  ;  Larquie  v.  Larquie,  40  La.  Ann. 
457,  4  So.  335,  336 ;  Roth  r.  Roth,  104  111.  35,  44  Am.  Rep.  81,  82  ;  Powers 
V.  Lynch,  S  Mass.  77. 


§  22        LEGAL   SITUS   OP   THE   PERSON,   OR    DOMICIL.         61 

who  abandons  that  State  and  goes  to  another  to  reside  perma- 
nently, thereby  ipso  facto  loses  citizenship  in  the  former  State 
and  acquires  it  in  the  latter,  regardless  of  his  own  intention  or 
wishes.* 

§  22.  The  Legal  Situs  or  Domicil  of  the  Person.  — In  law, 
persons  are  either  natural  persons,  individuals;  or  artificial 
persons,  corporations.  Private  international  law  regards  for 
the  most  part  the  domicil  of  natural  persons.  The  very  nature 
of  what  is  usually  termed  the  ''domicil  "  of  corporations  differs 
essentially  from  that  of  individuals,  and  is  subject  to  very 
different  rules.  It  is  manifestly  impossible  for  a  mere  cor- 
poration to  possess  a  permanent  home  or  residence  in  the  same 
sense  as  an  individual,  nor  is  there  usually  the  same  occasion  to 
fix  a  domicil  for  it.  Many  of  the  transactions,  which  in  the  case 
of  an  individual  must  be  regulated  by  the  law  of  his  domicil,  do 
not  arise  at  all  in  the  case  of  corporations,  such  as  most  questions 
of  status,  the  making  of  wills,  the  intestate  succession  to  estates, 
marriage,  divorce,  etc.  But  there  are  some  transactions  to  which 
a  corporation  may  be  a  party,  just  as  an  individual  may  be,  such 
as  taxation,  the  conveyance  of  property,  or  the  making  of  con- 
tracts. In  these  cases,  it  sometimes  becomes  necessary  to  in- 
voke the  aid  of  some  foreign  law,  corresponding  to  what  would 
be  the  law  of  the  domicil,  if  the  party  were  an  individual  in- 
stead of  a  corporation.  For  such  purposes  (comparatively  in- 
frequent), a  corporation  must  be  assigned  a  situs,  which  is 
sometimes  spoken  of  as  a  domicil.^ 

'■«  Dougherty  v.  Snyder,  15  S.  &  R.  (Penn.)  84,  16  Am.  Dec.  520  ;  Firth 
V.  Firth,  50  N.  J.  Eq.  137,  24  Atl.  916,  917.  Owing  to  this  principle,  the 
American  courts  are  more  prone  than  others  to  use  the  terms  "  residence  "  and 
"  citizenship,"  as  synonymous  with  domicil.  But  even  in  the  United  States, 
this  only  applies  to  citizens  of  the  United  States,  not  to  citizens  or  subjects 
of  foreign  countries.  In  general,  private  international  law  does  not  concern 
itself  with  mere  residence  or  with  citizenship.     See  post,  §  66. 

^  A  section  will  hereafter  be  devoted  to  the  situs  of  corporations.  Post, 
§  67.  With  respect  to  associations  of  persons,  not  incorporated,  such  aa  part- 
nerships, it  may  be  observed  that,  since  their  existence  as  a  legal  entity  is  not 
recognized  by  the  law,  neither  will  the  law  assign  them  a  distinct  situs  of 
their  own.  See  Faulkner  v.  Hyman,  142  Mass.  53,  55.  Such  associations 
are  sometimes  spoken  of  as  "  domiciled  "  or  "  resident  "  in  a  particular  place, 
but  what  is  meant  is  merely  that  all  the  partners  or  members  reside  there  and 


62  DEFINITION  OF  DOMICIL.  §  23 

The  domicil  of  natural  persons  may  be  divided  for  the  pur- 
poses of  the  subsequent  discussion  into  the  following  heads* 
(1)  Definition  of  domicil ;  (2)  Certain  general  principles  touch- 
ing domicil;  and  (3)  The  several  kinds  of  domicil,  and  the 
principles  governing  each.     These  will  be  taken  up  in  order. 

§  23.  Definition  of  Domicil  of  Natural  Persons.  —  The  domi- 
cil of  a  natural  person,  as  used  in  private  international  law,  may 
be  defined  as  the  State  or  country  where  a  party  actually  or 
constructively  has  his  permanent  horned 

The  conduct  of  a  man's  business,  the  presence  of  his  family, 
his  voting,  the  payment  of  his  taxes,  etc.,  are  not  essential  ele- 
ments of  a  domicil,  but  are  merely  evidences,  more  or  less 
weighty,  of  an  intention  to  make  the  place  where  these  things 
exist  or  are  done  his  permanent  home.  Such  circumstances 
therefore  should  find  no  place  in  the  definition.^ 

The  definition  of  domicil  above  given  is  very  broad,  as  it  must 
be  to  cover  all  the  points  that  may  arise.  Indeed,  owing  to  the 
number  of  points  to  be  covered,  there  are  few  terms  more  diffi- 
cult to  define.  As  was  said  in  Abington  v.  N.  Bridgewater,' 
"  The  fact  of  domicil  is  often  one  of  the  highest  importance  to  a 
person;  it  determines  his  civil  and  political  rights;  it  fixes  his 
allegiance  ;  it  determines  his  belligerent  or  neutral  character  in 
time  of  war;  it  regulates  his  personal  and  social  relations  whilst 

that  there  the  firm  transacts  its  business.  It  is  the  domicil  of  the  members 
that  is  looked  to,  when  that  is  important,  not  that  of  the  firm.  For  instances 
of  the  loose  employment  of  these  terms,  as  applied  to  unincorporated  associa- 
tions, see  Williams  v.  Dry  Goods  Co.,  4  Okl.  145,  43  Pac.  1148  ;  Halsted 
r.  Straus,  32  Fed.  279,  280 ;  Long  ».  Girdwood,  150  Penn.  St.  413,  24  Atl. 
711,  23  L.  R.  A.  33. 

1  Dicey,  Confl.  L.  79  ;  Story,  Confl.  L.  §  41 ;  Jopp  v.  "Wood,  4  DeG.,  J.  &  S. 
616,  622  ;  Mitchell  v.  United  States,  21  Wall,  350  ;  Desmare  v.  United  States, 
93  U.  S.  605;  Guier  v.  O'Daniel,  1  Binn.  (Penn.)  349,  note;  Price  v.  Price, 
156  Penn.  St.  617,  27  Atl.  291  ;  Oilman  v.  Gilman,  52  Me.  173,  83  Am.  Dec. 
502 ;  Hairston  v.  Hairston,  27  Miss.  704,  61  Am.  Dec.  530,  532  ;  White  v. 
Tennant,  31  W.  Va.  790,  8  S.  E.  596 ;  Hart  v.  Lindsey,  17  N.  H.  235,  43  Am. 
Dec.  597,  601 ;  Steer's  Succession,  47  La.  Ann.  1551,  18  So.  503. 

*  Pearce  v.  State,  1  Sneed  (Tenn.),  63,  60  Am.  Dec.  135 ;  Guier  v.  O'Daniel, 
IBinn.  (Penn.)  349,  note;  Steer's  Succession,  47  La.  Ann.  1551,  18  So.  503, 
806;  Shelton  v.  Tiffin,  6  How.  163. 

«  23  Pick.  (Mass.)  170,  176. 


§  24  AREA   OF  DOMICIL.  63 

he  lives,  and  furnishes  the  rule  for  the  disposal  of  his  property 
when  he  dies.  Yet  as  a  question  of  fact,  it  is  often  one  of  great 
difficulty,  depending  sometimes  on  minute  shades  of  distinction 
which  can  hardly  be  defined." 

To  every  definition  proposed  some  objection  may  be  offered. 
Thus  Story  defines  domicil  to  be  "the^lace  where  a  person  has 
>i T o^-jjm^  ^>y ftfl7  "^ riH^^p^rnfi^p.nt  home  and  principal  establish- 
mcnt^  nn(\  tn  vrhifih,  whenever  he  isaEsent^he  has  the  intenTrion 
of  returning. '^  *  Among  the  objections  tothis  definition  peF- 
haps  the  most  serious  one  is  that  it  has  no  application  to  the 
eonstructive  domicil  of  an  infant,  married  woman,  or  other  per- 
son incapable  in  law  of  exercising  a  choice  with  respect  to  his 
or  her  place  of  abode.  The  same  fault  is  to  be  found  with  most 
of  the  definitions  that  have  been  proposed. 

§  24.  Area  of  Domicil.  —  Since  the  domicil,  for  the  purposes 
of  private  international  law,  is  the  State  or  country  where  a 
party  has  his  permanent  home,  it  is  manifest  that  the  term  need 
not  be  confined  to  the  particular  tract  of  land,  town,  county, 
or  district,  immediately  occupied  by  him,^  but  it  also  extends 
to  the  whole  country  or  State  in  which  he  resides,  that  is,  the 
whole  territory  over  which  the  sovereignty  of  the  State  extends, 
and  controlled  therefore  by  the  same  system  of  laws.  But  it  is 
worthy  of  notice  that  the  term  includes  the  town,  county,  or 
district  of  residence,  as  well  as  the  State  itself,  and  that  one 
domiciled  in  such  town,  county,  or  district  must  also  be  domi- 
ciled in  the  State  of  which  it  forms  a  part,  for  the  greater 
includes  the  less. 

Eminent  authorities  have  declared  it  not  essential  that  one 
domiciled  in  a  particular  State  or  country  should  also  have  a 
fixed  residence  in  any  particular  spot  in  that  country.*  Thus, 
let  us  suppose  a  Frenchman  comes  to  England,  intending  to 
remain  permanently,  spending  his  life  traveling  from  one  point 
to  another  in  England,  but  residing  permanently  at  no  par- 
ticular spot.     According  to  these  authorities,  England  becomes 

<  Story,  Confl.  L.  §  41. 

1  This  corresponds  to  the  municipal  domicil,  but  the  national  or  quasi- 
national  domicil  is  more  comprehensive. 

s  Dicey,  Confl.  L.  91-93 ;  Jac.  Dom.  §  77. 


*•    ^    M/vui^  -ttma/  ^iji^^fr^'^^Ajt  ^1/t.x/  Jiyy^A^cuif  i/ 


A.4a«£m^^  >.*fctv>-*-^ 


64 


DOMICIL,  THE  ACTUAL  HOME. 


§25 


his  permanent  home  and  national  domicil,  but  ii«  is  domiciled 
in  no  particular  town  or  county  in  England,  he  hr»^s  no  -munici- 
pal domicil  there. 

Under  this  view,  the  Frenchman's  munic'pal  domicil,  if  he 
has  any  at  ail,  remains  in  France.  But  having  ceased  alto- 
gether to  reside  in  France,  and  becoming  domiciled  in  England, 
he  cannot  be  said  to  reside  in  any  town  or  county  or  province  of 
Irance.  We  are  then  driven  to  the  conclusion  that  he  must  be 
held  to  have  no  municipal  domicil  anywhere.  This  conclusion 
is  in  direct  contravention  of  the  great  weight  of  authority  in 
the  United  States  and  elsewhere,  to  the  effect  that  a  resident 
of  a  State  must  always  be  held  to  pos8e<^s  a  municipal  domicil 
somewhere  in  that  State.'' 

In  this  countrythe  question  is  still  an  open  one^  In  an 
Ulinojs  case^^Vwoman  domiciled  in  Missouri  abandoiie(rHiat 
State,--WTfch4iexJiusban37~nrteBdiB^-J;Q_remov^^  and  to 

reside-ei%bex..atBloommgton~c>r  Salem.  Shewent  toTlltnois  with 
herhusbapd.  but  before  they  had  r<eriiHQf1  in  wMrrh-^^wn  they 


jrjiii 

lOUld- 


yiTinnld  )?pf.flA  shfi  die'^.izijiggj;^;!^  ^^®  laws  of  Missouri  govern- 
ing the  succession  to_per3onaH"y  T^^ffftrftrl  fE£m»-ri»f>«^=sf  Illinois, 
(^nd  the  Question  thereu:BQlL-a^Q»^-whethbr  she  was^^omiciled  at 
hazLdgath  in  Illinois  or_MissQi]ri,  the  Im?  domifti1ii,drtprmining 
tbft_r->rHftT  nf  siirfiPiSHinn. — The  court— held  her-domicil  to  be 
Missouri,  but  based  its  decision  upon  the  ground  that,  not 
having  detinitelj_fixedjipiHL_eithfir.ioiy»_as  a  place  of  residence, 
there  was  no  sufficient  evidence  of  the  parH^s*--4fitention  to 
resi^ie  pexmauently  ill  Illinois  at  all.     The  main-peint  was  left 

undectltETir 

§  25.  Domicil,  the  ActUEiI  Permanent  Home.  —  Domicil 
usually  conveys  the  idea  of  '*  home  "  in  case  of  persons  sui  juris 

'  Abington  v.  N.  Bridgewater,  23  Pick.  (Mass.)  170;  Whitney  v.  Sherborn, 
12  Allen  (Mass.),  HI;  Otis  v.  Boston,  12  Gush.  (Mass.)  44;  Crawford  v. 
Wilson,  4  Barb.  (N.  Y.)  505  ;  Ayer  v.  Weeks,  65  N.  H.  248,  18  Atl.  1108  ; 
Siiepherd  v.  Cassiday,  20  Tex.  24,  70  Am.  Dec.  372  ;  School  Directors  v.  James, 
2  W.  &  S.  (Penn.)  568,  570,  87  Am.  Dec.  525  ;  Mills  v.  Hopkinsville  (Ky.), 
11  S.  W.  776. 

*  Cooper  V.  Beers,  143  111.  25,  33  N.  E.  61.  See  Lowry  v.  Bradley,  1  Speer's 
Eq.  (S.  C.)  1,  39  Am.  Dec.  142,  145,  where  the  court  seems  to  lean  the  other 
way. 


§  26  DOMICIL,  THE  CONSTRUCTIVE  HOME.  65 

and  capable  of  possessing  an  actual  home  of  their  own,  but  a 
home  need  not  necessarily  be  adomicil.^  "Home"  means  an 
actual  abode,  coupled  with  the  intention  of  remaining  there,  but 
it  is  not  needful  that  there  should  be  a  purpose  to  remain  perma- 
nently or  for  an  unlimited  time.^  But  when  is  added  to  home 
the  notion  of  permanency  and  stability,  wheSTTBecol 
nent  home,  there  being  no  present  fixed  exp? 
it  gfaTiy  fnf.nrft  fir^e.  near  or  remotgy  thtf  home  then  becomfea  a 
domicil. 

— Xndeed  it  is  too  well  settled  for  dispute  that  a  person  sui 
juris,  who  actually  resides  and  has  his  home  in  a  given  State,  is 
domiciled  there,  provided  he  has  legally  formed  an  intention  to 
remain  there  permanently,  or  for  an  unlimited  or  indefinite 
period;  *  or,  to  put  it  somewhat  differently,  provided  he  has  no 
present  fixed  intention  of  removing  therefrom  in  the  future.* 

§  26.  Domicil,  the  Constructive  Permanent  Home.  —  There 
are  some  cases  in  which  the  law  will  assume  that  a  person  has 
his  home  in  a  particular  country,  though  the  fact  may  be  far 
otherwise,  and  even  though  the  party  may  never  have  set  foot 
upon  its  shores.  In  these  instances  a  permanent  home  is 
implied  by  construction  of  law. 

These  cases  arise  for  the  most  part  (though  not  always)  where 
the  person  whose  domicil  is  to  be  determined  is  non  sui  juris, 
and  is  therefore  deemed  legally  incapable  of  forming  an  in- 
tention of  permanent  residence,  or  else  where  from  the  circum- 
stances of  the  case  the  law  must  presume  a  purpose  to  reside  in 
a  given  country.  One  may  thus  be  assigned  a  domicil  in  a 
State  where  he  does  not  actually  live. 

1  Otis  V.  Boston,  12  Gush.  (Mass.)  44;  Steer's  Succession,  47  La.  Ann. 
1551,  18  So.  503. 

^  Dicey,  Confl.  L.  80  et  seq. 

8  Guier  v.  O'Daniel,  1  Binn.  (Penn.)  349,  note  ;  Dupuy  v.  "Wurtz,  53  N.  Y. 
556  ;  Hairston  v.  Hairston,  27  Miss.  704,  61  Am.  Dec.  530 ;  Gilman  v.  Gil- 
man,  52  Me.  173,  83  Am.  Dec.  502 ;  Allgood  v.  Williams,  92  Ala.  551,  8  So. 
722 ;  White  v.  Tennant,  31  W.  Va.  790,  8  S.  E.  596. 

<  Putnam  v.  Johnson,  10  Mass.  488  ;  Hallett  v.  Bassett,  100  Mass.  167  ; 
Price  V.  Price,  156  Penn.  St.  617,  27  Atl.  291  ;  Whitney  v.  Sherborn,  12  Allen 
(Mass.),  Ill  ;  Gilman  v.  Gilman,  52  Me.  165,  83  Am.  Dec.  502.  The  firat 
mode  of  expression  is  the  more  accurate. 

6 


66  DOMICIL,   THE  CONSTRUCTIVE  HOME.  §  26 

In  assigning  a  constructive  domicil,  the  law  will  weigh  the 
circumstances  of  the  case,  the  probabilities  as  to  the  party's 
regarding  one  or  another  place  as  his  home,  should  he  exercise 
a  choice,  and  the  duty  he  may  be  under  to  abide  at  a  particular 
spot.  From  these  data  the  law  raises  certain  presumptions 
more  or  less  strong.  It  should  be  noticed  that  it  is  the  law 
that  raises  these  presumptions,  not  the  courts.  Hence  they  are 
not  so  liable  to  change,  with  the  slightly  varying  circumstances 
of  each  particular  case,  and  are  susceptible  of  being  reduced  to 
more  or  less  stable  rules.  The  courts  have  no  other  power  than 
to  decide  the  questions  thus  raised  in  accordance  with  the  rules 
and  presumptions  fixed  by  the  law. 

Thus,  an  infant  is  assigned  the  domicil  of  its  parent,  though 
it  be  born  elsewhere  and  has  never  been  within  their  domicil.^ 
Here  the  law  conclusively  presumes  that  the  home  of  the  child 
will  be  with  its  parents,  without  regard  to  the  facts  of  a  par- 
ticular case,  and  hence  wherever  their  permanent  home  is  his 
will  be  also. 

So,  where  a  woman  marries,  the  law  regards  her  as  identified 
with  her  husband,  and  recognizes  a  duty  resting  upon  her  to 
live  with  him.  Hence  the  law  presumes  her  proper  home  to  be 
with  him,  and  his  domicil  becomes  hers  upon  the  marriage. 
And  thereafter  throughout  their  married  life  her  domicil 
changes  with  his,  as  a  general  rule,  regardless  of  the  actual 
facts  in  the  case.'' 

The  instances  mentioned  have  been  cases  of  persons  non  sui 
juris,  but  the  principle  of  constructive  domicil  is  not  confined 
to  them.  Thus,  if  a  full  grown  man  should  abandon  his  native 
country,  intending  never  to  return,  his  domicil  is  not  thereby 
lost  or  changed.  It  is  a  well_settled[^rinciple_oJ[  law  that  a 
doinicil  is  rp/hajngj  imt.i]  a  new  one  is  acquired,  for  no  person 
can  ever  be  without  a  domicil.'  A  new  domicil,  in  the  case  of 
a  person~swi^'Brw^"cairoTlly  be  acquired  by  actual  residence  in 
the  new  country,  coupled  with  the  intention  to  remain  there  per- 
manently.*   HencC)  until  he  actually  takes  up  his  abode  else- 

1  Post,  §§  32,  36  et  seq.  »  Post,  §§  46  et  stq.. 

«  Post,  §  29.  *  Post,  5§  56  et  seq. 


§  27  NO  PERSON   WITHOUT   A   DOMICIL.  67 

where  aninio  manendi^  he  retains  his  former  domicil.  By 
construction  of  law  he  is  presumed  still  to  have  his  home  in 
his  original  domicil,  though  he  has  turned  his  back  upon 
his  country  for  ever.' 

§  27.  Certain  General  Principles  touching  Domicil.  —  I.  No 
Person  without  a  Domicil.  —  There  are  four  general  principles 
relating  to  domicil  which  must  be  borne  in  mind  throughout 
every  discussion  of  this  subject.  With  their  aid,  many  problems 
otherwise  difficult  may  be  easily  solved. 

The  first  of  these  may  be  thus  stated :  No  natural  person  can 
ever  be  without  a  domicil} 

For  the  purpose  of  determining  rights  and  liabilities,  the 
courts  of  all  civilized  nations  have  formulated  the  rule  that  a 
person  must  always  be  held  to  have  a  domicil  somewhere.  He 
may  be  homeless  in  the  ordinary  and  popular  sense  of  the  word, 
he  may  be  a  vagrant,  but  legally  he  will  always  be  deemed  to 
have  his  domicil  in  some  country.^ 

Thus,  in  Shaw  v.  Shaw,'  the  facts  were  that  Shaw  and  his 
wife,  domiciled  in  Massachusetts,  determined  to  remove  to 
Colorado.  They  left  Massachusetts,  not  expecting  to  return, 
and  proceeded  as  far  as  Philadelphia.  There  they  stopped  tem- 
porarily, and  during  their  stay  there  Shaw  was  so  cruel  to  his 
wife  that,  in  fear  of  her  life,  she  left  him  and  returned  to  Mas- 
sachusetts, where  she  applied  for  a  divorce.  Shaw  never  re- 
turned thither.  Though  fully  recognizing  the  principle  that 
a  divorce  should  only  be  granted  upon  the  application  of  one 
domiciled  within  the  State,*  the  court  granted  the  application. 

*  See  post,  §  29. 

i  Abington  v.  N.  Bridgewater,  23  Pick.  (Mass.)  170,  177  ;  Crawford  v. 
Wilson,  4  Barb.  (N.  Y.)  505,  518  ;  Dupuy  ».  Wurtz,  53  N.  Y.  556  ;  Desmare 
V.  United  States.  93  U.  S.  605 ;  Otis  ».  Boston,  12  Cush.  (Mass.)  44  ;  Shaw  v. 
Shaw,  98  Mass.  158 ;  AUgood  v.  Williams,  92  Ala.  551,  8  So.  722  ;  Oilman 
V.  Oilman,  52  Me.  165,  83  Am.  Dec.  502 ;  Ayer  v.  Weeks,  65  N.  H.  248, 
18  Atl.  1108 ;  De  La  Montanya  v.  De  La  Montanya,  112  Gal.  101,  32  L.  R.  A. 
82,  53  Am.  St.  Rep.  165;  Tipton  v.  Tipton,  87  Ky.  243,  8  S.  W.  440;  Whita 
t;.  Tennant,  31  W.  Va.  790,  8  S.  E.  596. 

2  See  Lowry  v.  Bradley,  1  Speer's  Eq.  (S.  C.)  1,  39  Am.  Dec.  142 ;  Borland 
V.  Boston,  132  Mass.  89,  42  Am.  Rep.  424 ;  Shaw  v.  Shaw,  98  Mass.  158. 

8  98  Mass.  158.  *  Post,  §  50. 


68  ONLY  ONE  DOMICIL  AT  A  TIME.  §  28 

Neither  the  hushand  nor  wife  had  acquired  a  domicil  elsewhere, 
and  in  the  language  of  the  court,  "  Every  one  must  have  a 
domicil  somewhere." 

Indeed,  the  authorities  go  a  step  further  and  lay  down  the 
proposition  that  not  only  must  a  person  always  have  a  domicil 
somewhere,  but  he  must  further  be  deemed  to  be  domiciled  in 
some  civilized  State  or  at  least  in  a  State  sufficiently  civilized  to 
possess  a  perfected  system  of  law.  Such  will  certainly  be  the 
rule  in  respect  to  persons  who  have  once  been  citizens  of  a  civil- 
ized country.'  The  reasons  for  this  last  qualification  are  quite 
evident.  Not  only  is  it  generally  true  in  cases  where  a  citizen 
of  a  civilized  community  has  exiled  himself  in  this  manner, 
that  he  does  not  intend  to  settle  permanently  in  a  barbarous 
country,^  but  even  should  such  an  extraordinary  intent  domi- 
nate his  mind,  public  policy  and  the  safety  of  the  individual 
alike  require  that  he  should  be  presumed  not  to  have  intended 
to  surrender  the  protection  and  benefits  secured  by  his  home 
laws  in  exchange  for  the  barbarous  customs  of  the  savages  among 
whom  he  lives. 

§  28.  II.  Only  one  Domicil  at  a  Time.  —  The  second  of 
these  principles  may  be  thus  stated:  No  natural  person  can 
have  more  than  one  domicil  at  a  time} 

It  is  the  settled  doctrine  both  in  England  and  America  that 
one  cannot  have  more  than  one  domicil  at  the  same  time  for  the 

5  Thus  there  are  numerous  English  cases  in  which  citizens  of  England  or 
Scotland  have  been  held  to  retain  their  original  domicils,  though  passing  their 
lives  in  India  or  China.  Dicey,  Confl.  L.  88,  149 ;  Bruce  v.  Bruce,  2  B.  &  P. 
229  ;  Jopp  V.  Wood,  4  DeG.,  J.  &  S.  616. 

8  Dicey,  Confl.  L.  733,  734. 

1  This  is  the  form  in  which  this  proposition  is  usually  stated,  but  it  is  sub- 
ject to  a  qualification.  It  is  true  that  no  one  court  or  no  one  jurisdiction  will 
consider  a  person  domiciled  in  more  than  one  place  at  a  time.  But  it  is  quite 
possible  that  the  court  of  one  State  may  adjudge  a  person  to  be  domiciled 
therein  at  a  given  time,  while  the  court  of  another  State,  before  whom  the 
same  question  may  be  pending,  may  hold  him  to  be  domiciled  in  the  second 
State  at  that  time.  Such  a  position  has  been  asserted  by  the  Massachusetts 
court  in  passing  upon  the  domicil  of  an  insane  person  under  guardianship 
there,  who  takes  up  his  abode  in  another  State,  where  he  is  adjudged  sane  and 
capable  of  selecting  his  own  domicil.  Talbot  v.  Chamberlain,  149  Mass.  57i 
60,  3  L.  R.  A.  254. 


§  28  ONLY  ONE  DOMICIL  AT  A  TIME.  69 

same  purpose.^  But  it  is  sometimes  said  or  intimated  that  a 
person  may  Have  one  domicil  for  one  purpose,  and,  at  the  same 
time,  other  domicils  for  other  purposes."  These  dicta  (for  they 
are  nothing  more)  Mr.  Dicey  explains  as  being  the  result  of  con- 
fusion of  thought  with  respect  to  the  terms  "  domicil "  and  "  resi- 
dence," domicil  being  used  in  these  cases  to  designate  different 
.kinds  of  residence.  He  maintains  with  great  earnestness  that 
no  person  can  have  more  than  one  domicil  at  a  time  for  any  and 
all  purposes,  and  in  this  he  is  supported  by  strong  authority.* 
Indeed,  it  may  be  accepted  as  generally  true  that  no  natural 
person  can  have  more  than  one  domicil  at  one  and  the  same 
time,  even  for  different  purposes,  using  the  word  "  domicil "  in 
its  technical  sense  as  importing  not  merely  residence,  but  resi- 
dence for  an  unlimited  period.* 

But  to  this  general  rule  theieJa-QJie  eYception,  or  at  least  an 
apparent^excepSon^  in  jthe.xase_of  -a-  mairried  woman^  suing  in 

other  State  or  country.  In  such  case,  notwithstanding  the  rule 
of  law  that  the  wife's  domicil  follows  that  of  her  husband,  •  and 
the  other  rule,  no  less  authoritative,  that  a  suit  for  divorce  must 
be  brought  in  the  domicil  of  the  complainant,''  it  is  now  gen- 
erally  admitted  that  a  wife  may  acquire  a  domicil  apart  from 

2  Abington  v.  N.  Bridgewater,  23  Pick.  (Mass.)  170,  177;  Otis  v.  Boston, 
12  Cush.  (Mass.)  44;  Ayer  v.  Weeks,  65  N.  H.  248,  18  Atl.  1108  ;  Crawford 
V.  Wilson,  4  Barb.  (N.  Y.)  505  ;  Dupuy  v.  Wurtz,  53  N.  Y.  556  ;  Allgood 
V.  Williams,  92  Ala.  551,  8  So.  722;  Oilman  v.  Oilman,  52  Me.  165,  83  Am. 
Dec.  502 ;  In  re  Olson's  Will,  63  la.  145,  18  N.  W.  854 ;  Somerville  v.  Somer- 
ville,  5  Ves.  750. 

»  See  Dupuy  v.  Wurtz,  53  N.  Y.  556  ;  Allgood  v.  Williams,  92  Ala.  551, 
8  So.  722 ;  Oilman  v.  Oilman,  52  Me.  165,  83  Am.  Dec.  502 ;  De  La  Mon- 
tanya  v.  De  La  Montanya,  112  Cal.  101,  32  L.  |R.  A.  82,  85  ;  White  v.  Ten- 
nant,  31  W.  Va,  790,  8  S.  E.  596  ;  Abington  v.  N.  Bridgewater,  23  Pick. 
(Mass.)  170,  177;  Hallett  r.  Bassett,  100  Mass.  167;  Greene  r.  Oreene,  11 
Pick.  (Mass.)  409,  415. 

*  Dicey,  Confl,  L.  96,  97;  Story,  Confl.  L.  §  45,  note  (a);  Jac.  Dom. 
§§  91,  92. 

5  Jac.  Dom.  §§  91,  92 ;  Otis  v.  Boston,  12  Cush.  (Mass.)  44  ;  Price  v.  Price, 
156  Penn.  St.  617,  27  Atl.  291 ;  De  La  Montanya  v.  De  La  Montanya,  113 
CJal.  101,  32  L.  R.  A.  82,  85,  53  Am.  St.  Rep.  165. 

•  Post.  §  46.  '  Post,  §  50. 


70         DOMICIL  KETAINED  TILL   ANOTHER   GAINED.       §  29 

her  husband  for  the  purpose  of  instituting  a  suit  for  divorce.' 
If  she  doea  ^ot  desire  a  divorcCj^  h^er  domicil  remains  in  general 
the  same  as  her  husband's,  and  ohangea  with  his.  This  principle 
appears  to~give  the  wife  one-dataicil  for  the  purpose  of  divorce, 
and  a  different  domicil  (at  the  same  time)  for  all  other  purposes. 
The  incongruity  of  this  result  has  even  led  one  court  to  deny 
the  well  nigh  universally  admitted  rule  that  jurisdiction  of, 
divorce  is  governed  by  the  domicil  of  the  complainant,  and  not 
by  his  or  her  mere  residence.^ 

But  upon  a  close  examination  it  will  probably  be  found  that 
there  is  little  or  no  real  incongruity  here.  After  the  wife  has 
instituted  the  suit,  if  then  a  question  should  arise  which  would 
make  it  needful  to  fix  her  domicil  for  any  purpose,  she  would 
probably  be  held  to  have  acquired  a  domicil  apart  from  her  hus- 
band/or  aZZ  purposes.  Until  she  sues  for  divorce  she  has  but 
one  domicil  for  any  purpose,  —  that  of  her  husband.  After  she 
institutes  the  suit  in  a  foreign  jurisdiction,  she  still  has  only 
one  domicil  for  any  purpose,  —  the  one  she  has  voluntarily 
chosen  as  the  locality  in  which  she  wishes  to  obtain  her 
divorce. 

—^  §  29.    III.  Domicil    retained   until    another  is    acquired.  — 
y^TYiQ  third  general  principle  relating  to  domicil  is  as  follows: 
A  domicil  once  acquired  is  retained  until  a  new  domicil  is 
gained.^ 

This  principle  is  but  the  logical  and  necessary  consequence 
of  the  two  preceding  ones.  K  one  can  never  be  without  a  dom- 
icil, and  can  never  have  but  one  domicil  at  a  time,  it  must  fol- 

»  Post,  §  50. 

»  De  La  Montanyai;.  De  La  Montanya,  112  Cal,  101,  32  L.  R.  A.  82,  85, 
63  Am.  St.  Rep.  165. 

1  Abington  v.  N.  Bridgewater,  23  Pick.  (Mass.)  170,  177;  Dupuy  v. 
Wurtz,  53  N.  Y.  556;  Hallett  v.  Bassett,  100  Mass.  167;  Borland  v.  Bos- 
ton,  132  Mass.  89,  42  Am.  Rep.  424  ;  Desmare  v.  United  States,  93  U.  S.  605; 
Mitchell  V.  United  States,  21  WaU.  350  ;  Shaw  v.  Shaw,  98  Mass.  158;  AH- 
good  V.  Williams,  92  Ala.  551,  8  So.  722 ;  Price  v.  Price,  156  Penn.  St.  617, 
27  Atl.  291;  Oilman  v.  Oilman,  52  Me.  165,  83  Am.  Dec.  502  ;  Williams  v. 
Saunders,  5  Coldw.  (Tenn.)  60  ;  Firth  v.  Firth,  50  N.  J.  Eq.  137,  24  Atl.  916  ; 
Lowry  v.  Bradley,  1  Speer's  Eq.  (S.  C.)  1,  39  Am.  Dec.  142,  144  ;  Shephei-d 
V.  Cassiday,  20  Tex.  24,  70  Am.  Dec.  372,  373;  Hart  v.  Lindsey,  17  N.  H- 
J85,  43  Am.  Dec.  597,  601,  602  ;  Somerville  v.  Somerville,  5  Ves.  750. 


§  29       DOMICIL  EETAINBD  TILL  ANOTHER   GAINED.         71 

low  that  a  domicil  once  acquired  will  be  retained  until  another 
is  gained.'  It  is  to  be  observed  therefore  that  the  abandonment 
of  a  domicil  does  not  of  itself  destroy  it,  even  when  coupled 
with  an  intent  to  acquire  a  new  one,  but  it  continues  until  an- 
other is  in  fact  gained.' 

Many  examples  of  the  application  of  these  propositions  might 
be  adduced,  but  one  or  two  will  suffice  to  illustrate  them. 

A  person  domiciled  in  Boston,  Massachusetts,  left  that  city  in 
1876,  with  his  family,  to  reside  in  Europe  for  an  indefinite 
period,  with  the  fixed  purpose  never  to  return  to  Boston,  and  to 
make  some  place  other  than  Boston  his  residence  when  he  should 
return.  While  in  Europe,  prior  to  May  1,  1877,  he  fixed  upon 
a  place  of  residence  in  another  State,  but  remained  in  Europe 
until  1879.  The  question  arose  whether,  as  a  domiciled  citizen 
of  Massachusets,  he  was  liable  to  taxation  there  on  his  personal 
property,  the  taxes  falling  due  May  1,  1877.  It  was  held  that 
he  was  still  domiciled  in  Boston  on  that  day.* 

In  another  case,  a  married  woman  left  New  York  for  Europe, 
with  her  husband,  for  her  health,  at  first  intending  to  return. 
But  after  her  husband's  death  her  physicians  decided  that  she 
must  not  come  back.  She  wrote  letters  to  that  effect,  but  still 
seemed  to  regard  New  York  as  her  home.  She  lived  in  hotels 
and  lodgings  in  Europe,  but  never  set  up  any  establishment 
there.  She  finally  died,  leaving  a  will  of  personalty  valid 
under  the  laws  of  New  York  but  invalid  under  the  law  of 
France,  where  the  will  was  executed  and  where  she  died.  It  was 
decided  that  the  validity  of  the  will  must  be  determined  by 
the  law  of  her  domicil,  and  that  she  must  be  deemed  to  have 
retained  her  New  York  domicil  until  she  acquired  another, 
which  she  did  not  do.® 

2  White  V.  Tennant,  31  W.  Va.  790,  8  S.  E.  596  ;  Ayer  w.  Weeks,  65  N.  H. 
248,  18  Atl.  1108. 

8  Shaw  V.  Shaw,  98  Mass.  158  ;  First  Nat.  Bank  v.  Balcom,  35  Conn.  351; 
In  re  Olson's  Will,  63  la.  145,  18  N.  W.  854 ;  Hood's  Estate,  21  Penn.  St. 
106 ;  Cooper  v.  Beers,  143  111.  25,  33  N.  E.  61 ;  Somerville  v.  Somervillfl^ 
5  Yes.  750. 

*  Borland  v.  Boston,  132  Mass.  89,  42  Am.  Rep.  424. 

»  Dupuy  V.  Wurtz,  53  N.  Y.  556. 


72  DOMICIL   CHANGEABLE  AT   PLEASURE.  §  30 

It  is  a  corollary  of  these  propositions  that  the  legal  presump- 
tion is  in  favor  of  the  retention  of  a  previous  domicil,  and  the 
hurden  of  proof  lies  on  him  who  asserts  a  change  of  domicil.* 
It  should  he  noted  however  that  a  change  of  domicil  from  one 
country  or  State  to  another  under  the  same  general  sovereignty, 
as  from  Scotland  to  England,  or  from  one  of  the  United  States 
to  another,  is  more  easily  inferred  than  a  change  to  a  foreign 
country,  whose  laws  are  strange  and  whose  people  are  alien.'' 
,^y>y^ ,,■  §  30.  IV.  PerBons  Sui  Juris  may  change  Domicil  at 
^  Pleasure.  —  The  fourth  principle  is :  Every  natural  person, 
free  and  sui  juris,  may  change  his  domicil  at  pleasure.^ 

This  is  the  result  of  the  personal  liberty  of  locomotion,  be- 
longing of  right,  and  now  generally  accorded  to  every  person 
not  under  disabilities  and  capable  of  controlling  his  own  move- 
ments. It  implies  the  exercise  of  choice  or  will,  and  hence  the 
proposition  is  applicable  only  to  that  kind  of  domicil  known  as 
the  domicil  of  choice.^ 

But  persons  who  are  not  legally  sui  juris,  such  as  infants, 
insane  persons,  or  married  women,  or  those  who  are  incapable  of 
exercising  a  choice  as  to  their  locality,  such  as  persons  impris- 
oned, invalids  ordered  to  a  particular  place  by  their  physicians, 
or  other  persons  deprived  of  freedom  of  locomotion,  cannot  in 
general  change  their  domicil  at  their  own  pleasure.' 

6  Desmare  r.  United  States,  93  U.  S.  605 ;  Mitchell  v.  United  States,  21 
Wall.  350;  AUgood  v.  "Williams,  92  Ala.  551,  8  So.  722  ;  Price  v.  Price,  156 
Penn.  St  617,  27  Atl.  291 ;  Hood's  Estate,  21  Penn.  St.  106  ;  Dnpuy  v. 
Wurtz,  53  N.  Y.  556. 

7  Moorehouse  v.  Lord,  10  H.  L.  Cas.  286,  287  ;  Whicker  v.  Hume,  7  H.  L. 
Cas.  124  ;  Steer's  Succession,  47  La.  Ann.  1551,  18  So.  503,  504;  Dupuy  ». 
Wurtz,  53  N.  Y.  556. 

1  See  Jac.  Dom.  §§  98,  100;  Udny  v.  Udny,  L.  R.  1  Sc.  App.  441 ;  Harral 
».  Harral,  39  N.  J.  Eq.  279,  51  Am.  Rep.  17. 

"  Post,  §§  56  et  seq. 

'  Particular  instances  of  these  incapacities  will  be  considered  hereafter. 
See  post,  §§  57,  58.  As  to  domicil  of  fugitive  from  justice,  see  Chitty  v.  Chitty, 
118  N.  C.  647,  24  S.  E.  617,  32  L.  R.  A.  394;  Young  i;.  PoUak,  85  Ala.  439, 
5  So.  279.  As  to  domicil  of  invalids,  see  Dicey,  Confl.  L.  143  ;  Dupuy  v. 
Wurtz,  53  N.  Y.  556;  Hegeman  v.  Fox,  31  Barb.  (N.  Y.)  475,  As  to  domicil 
of  exiles,  see  Ennis  v.  Smith,  14  How.  400.  Of  person  rum  compos  mentis, 
see  Harral  v.  Harral,  39  N.  J.  £q.  279,  51  Am.  Rep.  17  ;  Talbot  r.  Chamber* 


§  31  DOMICIL  OF   OBIOIK.  78 

§  31.   Sereral  Kinds  of  Domicil.  —  I.   Domicil  of  Origin.  — 

An  individual's  domicil  may  originate  in  three  ways.  It  may 
be  (1)  A  domicil  of  origin,  or  original  domicil  ;  (2)  A  con- 
structive domicil,  or  domicil  by  operation  of  law ;  or  (3)  A 
domicil  of  choice.  Each  of  these  various  forms  of  domicil  will 
be  examined  in  detail. 

The  domicil  of  origin  is  the  place  assigned  by  the  law  to 
every  child  as  its  permanent  home  or  legal  situs.  It  is  assigned 
at  the  moment  of  birth,  for  no  person  can  ever  be  without  a 
domicil,  and  so  one  must  be  at  once  assigned  him.  Upon  this 
account  it  has  been  sometimes  termed  the  domicil  of  birth,  ^  but 
the  use  of  this  term  is  liable  to  mislead,  since  it  implies  that 
one's  domicil  of  origin  is  the  place  where  he  is  born.  In  Bruce 
V.  Bruce,' Lord  Thurlow  disapproves  this  idea,  saying:  "It  is 
an  enormous  proposition  that  a  person  is  to  be  held  domiciled 
where  he  drew  his  first  breath,  without  adding  something  more 
unequivocal."  Indeed,  so  far  is  this  from  being  universally 
true  that  it  is  well  established  that  a  domicil  of  origin  may  be 
assigned  a  child  in  a  State  or  country  he  has  never  seen.  The 
place  of  birth  or  the  place  of  actual  residence  of  the  child  is 
generally  immaterial.' 

It  must  be  observed  that  the  domicil  of  origin  is  the  first  of 
all  domicils  in  point  of  time,  since  it  is  assigned  at  the  moment 
of  the  child's  birth.  Any  domicil  acquired  after  birth,  however 
short  or  long  the  interval,  cannot  be  a  domicil  of  origin.  It 
must  be  either  a  domicil  by  operation  of  law  or  a  domicil  of 
choice.  It  must  also  be  remembered  that  no  person  can  have 
more  than  one  domicil  at  a  time.  Hence  it  is  impossible  for  one 
to  have  more  than  one  domicil  of  origin.  No  subsequent  occur- 
rence, no  combination  of  circumstances,  can  make  that  place  a 

lain,  149  Mass.  57,  3  L.  R.  A.  254 ;  Upton  v.  Northbridge,  15  Mass.  237  ; 
Mowry  v.  Latham,  17  R.  I.  480,  23  Atl.  13  ;  Sharpe  r.  Crispin,  L.  R.  1  P.  &  D. 
611 ;  Bempde  v.  Johnstone,  3  Ves.  Jr.  198. 

1  See  Story,  Confl.  L.  §§  35, 46  ;  Whart.  Confl.  L.  §  35 ;  Steer's  Succession, 
47  La.  Ann.  1551,  18  So.  583. 

2  2  Bos.  &Pul.  229,  230.  See  Munro  v.  Munro,  7  CI.  &  F.  842  ;  Somerrille 
».  Somerville,  5  Ves.  750 ;  Price  v.  Price,  156  Penn.  St.  617,  27  Atl.  291. 

*  Somerville  v.  Somerrille,  5  Ves.  750 ;  Colbum  -».  Holland,  14  Sich.  Eq. 
(S.  C.)  176,  228 ;  Guier  v.  O'Daniel,  1  Binn.  (Penn.)  349,  note. 


74  ORIGINAL  DOMICIL   OP  LEGITIMATE   CHILD.        §  32 

child's  domicil  of  origin  which  was  not  so  when  he  was  born. 
The  original  domicil  may  be  altered  by  such  a  combination  of 
circumstances,  and  the  person  may  acquire  a  new  domicil,  but 
it  will  be  either  a  constructive  domicil  or  a  domicil  of  choice. 

These  conclusions  seem  irresistible,  but  authorities  are  found 
to  hold  that  the  domicil  of  origin  may  be  affected  by  certain 
circumstances  occurring  after  birth,  such  as  the  subsequent 
legitimation  of  a  child  born  a  bastard.* 

Since  every  newborn  child  must  have  a  domicil  somewhere, 
and  since  he  is  incapable  of  selecting  one  for  himself,  the  law 
undertakes  to  ascertain  it  by  well  defined  rules.  To  that  end  it 
sets  apart  as  his  domicil  of  origin  that  country  which,  under  all 
the  circumstances  of  the  case,  would  be  most  naturally  looked 
upon  by  him  as  his  home,  had  he  the  power  to  express  a  prefer- 
ence.^ And  since  a  domicil  once  acquired  is  retained  until 
another  is  gained,  it  frequently  happens  that  one  retains  his 
domicil  of  origin  even  after  he  has  reached  mature  years.' 

The  rules  whereby  to  determine  the  domicil  of  origin  depend 
upon  various  circumstances  attending  the  party's  birth,  as 
whether  he  be  born  legitimate  or  illegitimate;  if  the  former, 
whether  the  father  be  living  or  dead  at  the  time  of  his  birth ; 
or  whether  the  child  is  a  foundling,  whose  parents  are  unknown. 

§  32,  Original  Domicil  of  Child  born  Legitimate.  —  If  the 
father jA..alive  at  tbe-t^ina«-afJJae  birth  of  a  legitimate  child,  the 
infant  has  his  domicil  of  origin  in  the  couiitry  where  the  father 
then  had  his  domicil.*  It  is  the~father^s  highest  duty  to  pro- 
vide a  support  and  a  home  for  his  helpless  and  dependent  off- 
spring,* and  it  is  his  privilege  to  have  the  care  and  custody  of 

*  Dicey,  Confl.  L.  104.    See  post,  §§  33,  34. 

»  See  Price  v.  Price,  156  Peun.  St.  617,  27  Atl.  291. 

•  Gaier  v.  O'Daniel,  1  Binn.  (Penn.)  349,  note;  Crawford  v.  Wilson, 
4  Barb.  (N.  Y.)  505  ;  Price  v.  Price,  156  Penn.  St.  617,  27  Atl.  291  ;  Firth  v. 
Firth,  60  N.  J.  Eq.  137,  24  Atl.  916;  In  re  Steer,  3  H.  &  N.  594. 

1  Gaier  v.  O'Daniel,  1  Binn.  (Penn.)  349, note;  School  Directors  v.  James, 
2  W.  4  S.  (Penn.)  568,  37  Am.  Dec.  525;  Hiestand  v.  Kuns,  8  Blackf.  (Ind.) 
845,  46  Am.  Dec.  481 ;  Somerville  v.  Somerville,  5  Ves.  750 ;  Sharpe  v.  Cris« 
pin,  L.  B.  1  P.  &  D.  611;  Whart.  Confl.  L.  §  35;  Story,  Confl.  L.  §  46. 

«  See  Price  v.  Price,  156  Penn.  St.  617,  27  Atl.  291;  Van  Matre  v.  Sankey, 
148  111.  356,  36  N.  E.  628;  Guier  v.  O'Daniel,  1  Binn.  (Penn.)  349,  note. 


§  33  ORIGINAL  DOMICIL  OP   BASTARD.  76 

the  child's  person  and  education.  To  no  other  person  has  the 
child  the  same  right  to  look  for  these  things;  and  if  the  infant 
itself  had  the  discretion  to  express  a  preference,  it  would  most 
probably  choose  as  its  home  that  of  its  father.  The  probabilities 
are  in  favor  of  that  being  the  child's  permanent  home  rather 
than  any  other  place.  Hence  the  law,  basing  a  general  rule 
upon  conrenience  and  the  probabilities  of  the  case,  has  fixed 
upon  this  as  the  infant's  domicil  of  origin. 

If  the  father  is  dead  when  the  child  is  born,  he  receives  as 
his  original  domicil  that  of  his  mother  at  that  time.  In  the 
absence  of  the  father,  his  natural  protector,  the  infant  must  look 
to  the  mother  for  a  home,  and  for  all  the  guardian  care  that 
childhood  requires.' 

§  33.  Origined  Domicil  of  a  Bastard  —  Of  Legitimated  Child. 
—  The  law  does  not  in  general  fix  upon  any  particular  man  as 
the  father  of  a  bastard,  because  of  the  uncertainty  in  ascertain- 
ing him.  The  bastard  is  filius  nullius.  But  there  is  no  more 
difficulty  in  ascertaining  who  is  the  mother  of  a  bastard  than  of 
a  legitimate  child,  though  the  common  law  thought  otherwise. 
And  since,  in  most  cases,  the  care  and  support  of  an  illegitimate 
child  devolves  upon  the  mother,  the  law  justly  infers  that  the 
probabilities  in  every  case  are  greatly  in  favor  of  the  bastard's 
living  with  his  mother  rather  than  with  the  father,  even  if  the 
latter  is  known. 

Hence  the  general  rule-o£-IagJg  that  a  bastard^a-domioi-l  of    ^ 
origin  is  the  domicil  of  the  mother  at  the  moment  of  his  birth.* 

Upon  principle,  it  would  seem  that  no  circumstance  super- 
vening after  the  bastard's  birth  should  make  his  domicil  of 
origin  other  than  that  of  the  mother  at  that  time,  though  such 
a  circumstance  might  confer  upon  him  a  new  domicil  by  opera- 
tion of  law.  Thus,  the  subsequent  acknowledgment  by  the 
father,  or  his  intermarriage  with  the  mother,  which  by  the  law 
of  many  countries  renders  the  bastard  legitimate,  may,  as  we 

8  See  Jac.  Dom.  §  105;  Dicey,  Confl.  L.  103;  Van  Matre  v.  Sankey,  148 
111.  356,  36  N.  E.  628 ;  Mears  v.  Sinclair,  1  W.  Va.  185. 

1  Dicey,  Confl.  L.  103 ;  Wright's  Trusts,  2  K.  &  J.  595,  25  L.J.  (Ch.)  621; 
Udny  V.  Udny,  L.  R.  1  Sc.  App.  441;  Blythe  t>.  Ayres,  96  Cal.  532,  31  Pac. 
915,  19  L.  R.  A.  40. 


76  ORIGINAL  DOMICIL  OF  BASTARD.  §  33 

shall  presently  see,  cause  the  infant's  domicil  thereafter  to  be 
governed  by  that  of  the  father.*  But  the  bastard's  domicil  in 
such  case  would  cease  to  be  the  domicil  of  origin,  and  would 
become  a  constructive  domicil.  His  ^rst-and -oxigiaal  domicil 
was  ihatx)!  the  mother,  and  hence  when  he  afterwards  acquires 
the  domicil  of  ihe  fatherT^-xeaaoiLQl  tha  legitimation,  it  cannot 
be  referred  back  to  the  time  of  his  birth,  even  though  the  legiti- 
mation itself  he^referred  to  that  datg.  The  domicil  of  origin  is 
assigned  at  the  moment  of  birth;  whatever  is  then  the  condition 
of  the  child  will  determine  the  locality  of  that  domicil.  If  he 
be  then  illegitimate,  and  the  mother's  domicil  is  once  assigned 
him  legally  as  his  domicil  of  origin,  no  other  domicil  of  origin 
can  be  assigned  him.  That  would  be  to  give  him  two  domicils 
at  the  same  time." 

It  must  be  admitted  however  that  t^ere  are  authorities  other- 
wise.* For  example,  so  able  and  accurate  a  commentator  upon 
the  Conflict  of  Laws  as  Mr.  Dicey  states  the  rule  to  be  that  one 
born  a  bastard  but  afterwards  legitimated  stands  (after  legiti- 
mation) in  the  position  he  would  have  occupied  if  he  had  been 
born  legitimate,  and  that  his  domicil  of  origin  is  therefore  the 
country  where  his  father  was  domiciled  at  the  time  of  the  bas- 
tard's birth  (not  at  the  time  of  his  legitimation).  But  he  admits 
that  this  opinion  is  open  to  doubt.*  This  view  seems  to  be  based 
upon  the  theory  that  the  act  legitimating  the 'bastard  (such 
as  an  intermarriage  of  the  parents)  is  to  be  referred  to  the  time 
of  conception  or  of  birth,  thus  causing  the  conception  or  birth  to 
take  place,  by  relation^  in  wedlock.  Even  if  this  theory  is  ad- 
mitted, it  does  not  materially  weaken  the  force  of  the  reasoning 
above  adduced  against  the  proposition,  and  would  be  of  no  ap- 
plication at  all  in  those  cases  where  the  legitimation  arises 
from  some  other  source  than  a  subsequent  intermarriage  of  the 
parents,  such  as  the  mere  acknowledgment  of  the  father,  which 
suffices  in  some  States.' 

a  Post,  §  43  ;  Dicey,  Confl.  L.  104 ;  Whart.  Confl.  L.  §  38. 
«  See  Jac.  Dom.  §  30. 

*  Dicey,  Confl.  L.  104.     See  Munro  v.  Munro,  7  CI.  &  F.  817. 
«  Dicey,  Confl.  L.  104. 

«  See  Blythe  v.  Ayres,  96  Cal.  352,  31  Pac.  915,  19  L.  R.  A  40 ;  Ires  a 
McNicoU,  59  Ohio  St.  402,  43  L.  R.  A.  772. 


§  34  ORIGINAL  DOMICIL  OP   FOUNDLING.  77 

§  34.  Original  Domicil  of  a  Foundling  —  Of  an  Adopted 
Child.  —  A  foundlifig^domijciI_of-^»igiH--ift-thacouiitry  where 
he  ifipfound.*  The  principle  applicable  here  is  not  different  from 
that  applied  in  other  cases  of  original  domicil.  But  there  is 
here  an  element  of  uncertainty  not  arising  under  other  circum- 
stances,— an  uncertainty  as  to  the  locality  of  the  parents'  domi- 
cil. In  other  cases  this  quantity  in  the  equation  is  known. 
Here  the  parents  themselves  are  not  ascertained,  much  less  their 
domiciL 

The  law  therefore  in  such  cases  must  not  only  raise  the  pre- 
sumption, as  in  the  case  of  other  new-born  infants,  that  they 
will  have  their  permanent  home  in  the  domicil  of  their  parents, 
but  it  must  make  a  further  presumption  as  to  the  locality  of  that 
domicil.  The  law  will  assume  that  the  parents'  domicil  is  in 
the  country  where  the  child  is  found,  in  the  absence  of  evidence 
to  the  contrary,  upon  the  principle  that  where  no  domicil  is 
shown  to  exist  elsewhere,  mere  presence  in  a  country  sufi&ces  to 
establish  a,  prima  facie  domicil  there.* 

It  is  to  be  observed  that  the  two  presumptions  above  referred  to 
differ  in  this  respect.  The  presum^ptiott^fchat-the-^omiciljjf.  the 
parents  is  in  the  country  where  the  foundling_is_.dise»veped-.  is 
merely  a  presumpfibn  oTj^ac^,  rebuttaiJjle- by  evidence  to  the 
contrwry^;  while  the  other  jjresiimption  —  that  a  child  has  as  his  J 
domicil  of  origin  the  domicil  of  his  parents  at  tte  tinre-^Lhis 
birth  —  is  a  conclusive  presumption  of  law  whieh-«»mnjt' be 
rebutted  in  a  particular  case. 

Hence,  if  it  is  afterwards  discovered  that  the  parents'  domicil 
at  the  birth  of  the  foundling  was  in  reality  in  some  other  coun- 
try than  that  wherein  he  is  found,  his  domicil  of  origin  is  at 
once  transferred  thither,  and  the  latter  place  will  thenceforth  be 
considered  his  domicil  of  origin.'  This  last  conclusion  is  not  in 
conflict  with  the  principle  that  no  one  can  have  more  than  one 
domicil  of  origin.  The  law,  in  this  case,  merely  acknowledges 
itself  mistaken  in  assuming  that  the  parents  were  domiciled  in 

1  Dicey,  Confl.  L.  103,  132;  Whart.  Confl.  L.  §  39.     See  Washington  « 
Beaver,  3  W.  &  S.  (Penn.)  548,  549. 
3  Post,  §  64  ;  Dicey,  Confl.  L.  132. 
»  See  Washington  v.  Beaver,  3  W.  &  S.  (Penn.)  548,  549. 


78  CONSTRUCTIVE  DOMICIL.  §  35 

the  country  where  the  child  is  found,  and  corrects  its  mistake. 
This  is  a  very  different  case  from  that  of  the  legitimated  hastard 
adverted  to  in  the  preceding  section. 

Where  a  child  has  heen  adopted  by  persons,  not  his  natural 
parents,  it  is  evident  that  the  adoption,  like  the  subsequent 
legitimation  of  a  bastard,  being  a  circumstance  supervening 
after  his  birth,  cannot  confer  upon  him  any  other  original 
domicil  than  the  one  he  already  has. 

§  35.  II.  Constructive  Domicil,  arising  by  Operation  of 
Itaw.  —  The  domiciLjof  origin,  it  will_be  rememberedj  is  as- 
signed at  the  very  moment  of  birth,  and  is  retained  until  an- 
other is  acquired.  Such  new  domicil  may  be  acquired  in  two 
ways.  The  individual,  having  reached  maturity  and  being  free 
from  all  disabilities,  may  choose  a  new  home  for  himself.  This 
is  a  domicil  of  choice.  But  it  often  becomes  necessary  for  the 
law  to  assign  a  new  domicil  other  than  that  of  origin  to  infants 
and  other  persons  incapacitated  from  selecting  their  own  homes. 

Thus,  a  child's  domicil  of  origin  is  the  domicil  of  the  father 
at  the  moment  of  its  birth.  But  the  father  may  change  his 
domicil  to  another  State  or  country.  The  same  reasons  which 
induce  the  law  to  make  the  father's  former  domicil  the  child's 
domicil  of  origin  operate  to  alter  the  child's  domicil  with  that 
of  the  father.  And  so  it  is  with  disabilities  other  than  infancy, 
such  as  those  of  a  married  woman  or  an  idiot. 

Such  domicil,  being  assigned  by  the  law,  is  said  to  arise  by 
construction  or  operation  of  law.  As  in  the  case  of  the  original 
domicil,  the  determination  of  the  constructive  domicil  is  based 
upon  legal  presumptions,  which  however  are  so  strong  as  to  be 
in  the  main  conclusive  and  incontrovertible.  Indeed  the  domicil 
of  origin  itself  is  only  one  instance  of  constructive  domicil,  though 
generally  treated  separately  because  of  its  peculiar  importance 
and  influence. 

There  are  two  main  points  of  difference  between  a  domicil  of 
origin  and  a  constructive  domicil. 

The  first  is  that  the  domicil  of  origin  is  assigned  to  infants  at 
the  moment  of  birth,  while  a  constructive  domicil  is  always  as- 
signed after  birth,  and  may  be  given  to  others  under  disabilities 
as  well  as  to  infants. 


§  36  DOMICIL  OF   INFANT  —  LEGITIMATE.  79 

The  second  difference  is  to  be  found  in  the  weight  sometimes 
attached  to  the  domicil  of  origin  in  ascertaining  the  domicil  of 
choice  in  doubtful  cases.  It  is  expressed  by  the  maxim :  The 
domicil  of  origin  is  less  easily  abandoned  and  more  easily  re- 
verts} This  is  simply  a  rule  of  evidence  and  means  that  it  will 
take  more  convincing  proof  to  show  that  one  has  abandoned  his 
original  domicil  for  a  new  one  than  to  show  that  he  has  aban- 
doned one  later  domicil  for  another;  and  on  the  other  hand,  it 
will  require  less  evidence  to  prove  a  resumption  of  the  domicil 
of  origin  (upon  the  abandonment  of  some  later  domicil)  than  to 
prove  the  acquisition  of  an  entirely  new  domicil.* 

There  are  a  number  of  instances  of  constructive  domicil,  the 
most  important  of  which,  those  of  infants,  married  women,  and 
insane  persons,  will  now  be  examined. 

§  36.  Constructive  Domicil  of  Infant  —  Legitimate  Child.  — 
Infants,  not  having  arrived  at  years  of  discretion,  are  incapable 
in  law  of  exercising  that  voluntary  and  discreet  choice  in  regard 
to  their  permanent  abode  which  is  essential  to  the  acquisition 
of  a  domicil  of  choice.^ 

Furthermore,  it  being  ordinarily  true  in  fact  that  an  infant 
occupies  the  home  of  his  parents  and  is  under  their  fostering 
care  and  protection,  until  he  is  himself  able  to  battle  with  the 
world,  the  law  substitutes  the  general  presumption  that  such  is 
the  case  in  the  place  of  particular  evidence  in  each  case  as  it 
arises.  We  have  already  noted  the  application  of  this  rule  in 
ascertaining  the  domicil  of  origin.  The  same  principles  will 
in  general  apply  to  any  subsequent  change  of  domicil  during 

1  Jac.  Dom.  §§  110,  115  et  seq.  ;  Ennis  v.  Smith,  14  How.  400  ;  Hallett 
V.  Bassett,  100  Mass.  167  ;  Otis  r.  Boston,  12  Gush.  (Mass.)  44  ;  Harvard 
College  V.  Gore,  5  Pick.  (Mass.)  370 ;  Oilman  v.  Oilman,  52  Me.  165,  83  Am. 
Dec.  502  ;  Somerville  v.  Somerville,  5  Ves.  750  ;  Douglas  v.  Douglas,  L.  R. 
12  Eq.  617.  See  Steer's  Succession,  47  La.  Ann.  1551,  18  So.  503 ;  post, 
§§  65,  66. 

*  This  last  proposition  is  discoased,  and  in  some  measure  dissented  from, 
post,  §§  65,  66. 

1  Jac.  Dom.  §  229  ;  Van  Matre  v.  Sankey,  148  111.  356,  36  N.  E.  628  ;  Price 
V.  Price,  156  Penn.  St.  617,  27  Atl.  291  ;  Lamar  v.  Micou,  112  U".  S.  452  ; 
Allgood  V.  WiUiams,  92  Ala.  551,  8  Sov  722  ;  Mears  v.  Sinclair,  1  W.  Va.  185  ; 
Guier  v.  O'Daniel,  1  Binn.  (Penn.)  349,  note. 


80  infant's  domioil  —  fatheb  alive.  §  37 

the  child's  minority;  and  in  the  main  similar  distinctions  are 
to  be  taken. 

The  domicil  of  a  legitimate  child  may  be  brought  into  ques- 
tion under  various  circumstances.  The  child's  father  may  be 
living;  or  he  may  be  dead,  the  mother  surviving;  or  both  may 
be  dead;  or  they  may  be  divorced. 

§  37.  Domicil  of  Legitimate  Child  —  Father  Alive.  —  It  is 
a  well  established  rule  that  the  domicil  of  an  infant  will  usually 
change  wijh  that  of  the  father,  so  long  aa  he  lives.*  It  will  in 
general  make  no  difference  in  the  application  of  this  principle 
that  the  father  and  mother  actually  reside  apart  in  different 
States  or  countries,  or  that  in  fact  the  child  lives  with  its 
mother.' 

The  reason  for  this  presumption  of  law  is  not  only  that  in  the 
rast  majority  of  cases  the  child  actually  has  the  home  of  his 
father,  but  it  may  be  placed  upon  the  broader  ground  of  the 
established  legal  right  of  the  father,  as  the  natural  guardian 
of  the  child,  to  the  custody  of  his  person  against  all  the  world, 
—  even  against  the  mother,  —  and  his  corresponding  duty  to 
afford  it  home  and  shelter.' 

It  is  said  that  possibly  the  father's  abandonment  of  his  family 
and  the  emancipation  of  the  child  will  constitute  exceptions  to 
this  rule.*    And  if  the  parents  should  have  been  divorced,  under 

1  Dicey,  Confl.  L.  120  ;  Jac.  Dom.  §  235  ;  Story,  Confl.  L.  §  46  ;  Whart. 
Confl.  L.  §  41  ;  Sharpe  v.  Crispin,  L.  R.  1  P.  &  D.  611 ;  Lamar  v.  Micou,  112 
U.  S.  452;  School  Directors  v.  James,  2  W.  &  S.  (Penn.)  568,  37  Am.  Dec. 
525 ;  Van  Matre  v.  Sankey,  148  III.  356,  36  N.  E.  628 ;  Hears  v.  Sinclair, 
1  W.  Va.  185 ;  Dresser  v.  Illuminating  Co.,  49  Fed.  257  ;  Hiestand  v.  Runs, 
8  Blackf.  (Ind.)  345,  46  Am.  Dec.  481  ;  Woodward  v.  Woodward,  87  Tenn. 
644,  11  S.  W.  892,  896  ;  Kline  v.  Kline,  57  la.  386,  10  N.  W.  825,  826. 

2  See  Jac.  D«m.  §  236  ;  Allgood  v.  Williams,  92  Ala.  551,  8  So.  722 ;  Kelsey 
».  Green,  69  Conn.  291,  37  Atl.  679. 

»  Allgood  V.  Williams,  92  Ala.  551,  8  So.  722.  See  Lamar  v.  Micou,  114 
TJ.  S.  214.  "  The  nurture  and  education  of  the  offspring  make  it  indispensable 
that  they  be  brought  up  in  the  bosom  of  their  parents'  family  ;  without  which 
the  father  could  not  perform  the  duties  he  owes  them,  or  receive  from  them  the 
service  that  belongs  to  him."  School  Directors  r.  James,  2  W.  &  S.  (Penn.) 
568,  37  Am.  Dec.  525,  527. 

*  Jac.  Dom.  f §  231-237  ;  Allgood  v.  Williams,  92  Ala.  551,  8  So.  7J2.  See 
Van  Matre  v.  Sankey,  148  111.  356,  36  N.  E.  628. 


§  37  infant's  domicil  —  father  alive.  81 

such  circumstances  of  misconduct  on  the  part  of  the  husband 
that  the  divorcing  court  has  taken  the  children  from  his  custody 
and  has  turned  them  over  to  the  mother,  thenceforward,  provided 
the  court  has  jurisdiction  to  make  the  decree,  the  domicil  of  the 
children  will  usually  be  held  to  depend  upon  that  of  the  mother, 
since  she  then  has  the  legal  custody  of  them.  The  father  has 
ceased  to  be  the  natural  guardian,  and  the  foundations  upon 
which  this  rule  of  domicil  is  based  are  shattered.' 

Although  it  is  ordinarily  competent  for  the  father  to  change 
his  child's  domicil  at  any  time  hy  changing  his  own,  it  is  not 
as  a  general  rule  within  his  power  to  give  the  child  a  domicil 
apart  from  his  own.^ 

Thus,  in  Allgood  «.  Williams,'  it  appeared  that  the  father  of 
an  infant,  a  few  weeks  before  his  death,  requested  his  brother 
to  take  the  child  and  raise  her.  The  uncle  lived  in  a  different 
county  from  the  father  but  in  the  same  State.  The  question 
arose  as  to  which  county  was  the  legal  residence  of  the  child 
after  the  father's  death.  It  was  held  that  the  child's  municipal 
domicil  remained  in  the  county  where  the  father  had  lived,  and 
was  not  transferred  to  the  home  of  her  uncle. 

In  De  Jarnett  v.  Harper,*  the  parent,  residing  in  Missouri, 
actually  entrusted  the  custody  of  the  infant  child,  before  death, 
to  a  person  in  another  county  in  the  same  State.  It  was  held 
that  that  fact  did  not  change  the  minor's  domicil  for  the  pur- 
pose of  determining  in  which  county  a  guardian  should  be 
appointed  on  the  parent's  death. 

But  though  a  father  will  not  generallyJbe_permittedto  change 
his  child's  domicITsave  in  so  far  as  he  changes  his  own,  there" 

'  The  same  result  would  seem  to  follow  without  a  divorce  if  the  husband's 
conduct  has  been  such  as  to  make  it  necessary  to  withdraw  from  him  the 
custody  of  his  children.  Jac.  Dom.  §  237.  See  Kelsey  v.  Green,  69  Conn. 
291,  37  Atl.  679. 

«  Jac.  Dom.  §§  237,  241 ;  Dicey,  Confl.  L.  143  ;  "Woodward  v.  Woodward, 
87  Tenn.  644,  11  S.  W.  892  ;  Allgood  v.  WiUiams,  92  Ala.  551,  8  So.  722 ; 
De  Jamett  v.  Harper,  45  Mo.  App.  415.  These  two  latter  cases  refer  to  municu 
pal  domicil,  but  a  fortiori  the  same  principle  would  govern  national  or  quasi' 
national  domicil.     But  see  White  t>.  Howard,  52  Barb.  (N.  Y.)  294,  318. 

1  92  Ala.  551,  8  So.  722. 

«  45  Mo.  App.  415. 

6 


82  DOMICIL  OP   FATHERLESS  INFANT.  §  38 

are  qualifications  of  the  rule  that  deserve  attention.  If  the 
father  should^x_the,child'ajesidence  apart  from  his  own,  with 
the  intentioiLflf^JfilBa^eStlyjrfiaQjjncing^o^^  over  its  actions, 
and  surrendering  to  competent  persons  his  legal  right  to  the  cus- 
tody of  its  "person  an  drthe'caFe""oF~Tfs~education,  this  might,  in 
some  cases,  effect  a  change  in  the  child's  domicil . '  Thus  if  the 
father  should  Isind  the  child  out  as  apprentice,  the  latter's  dom- 
icil, it  is  believed,  will  then  become  that  of  the  master,  and  will 
change  with  his,  even  into  anothw  SfeM  of  country,  if  such  a 
change  is  within  the  scope  of^ the  contract  of  apprenticeship. 
Here  not  only  the  actual  physical  custody,  but  the  legal  custody 
also,  has  been  renounced  by  the  parent.^" 

The  same  is  true  if  the  father surrenderajfehe  child  to  a  third 
person  for  adoption,  at  least  where  the  relation  of  child  by  adop- 
tion is  legally  recognized.^^ 

§38.  Same  —  Father  Dead,  Mother  Surviving.  —  It  is  a 
general  principle  of  the  law  that,  after  the  father's  death,  the 
mother  succeeds  to  his  position  as  the  natural  guardian  of  the 
infant  children,  so  long  as  she  remains  unmarried  and  is  fit  for 
the  trust.  There  is  a  strong  moral,  if  not  a  strictly  legal,  duty 
resting  upon  her  to  provide  them  a  home,  as  in  fact  she  usually 
will.  For  these  reasons  the  rule  seems  now  well  established 
that  the  domicil  of  the  fatherless  infant  will  change  with  that 
of  the  mother,  at  least  so  long  as  she  remains  unmarried.* 

»  Jac.  Dom.  §§  246,  247,  248;  Maddox  v.  State,  32  Ind.  14  ;  Ross  v.  Ross, 
129  Mass.  243,  37  Am.  Rep.  321;  In  re  Johnson,  87  la.  130,  54  N.  W.  69  ; 
Washburn  v.  White,  140  Mass.  568. 

1°  See  Maddox  v.  State,  32  Ind.  14,  which  however  is  a  case  of  monicipal 
domicil,  involving  the  right  to  vote. 

"  Jac.  Dom.  §§  247,  248;  Ross  v.  Ross,  129  Mass.  243,  37  Am.  Rep.  321; 
Washburn  v.  White,  140  Mass.  568  ;  Woodward  v.  Woodward,  87  Tenn.  644, 
11  S.  W.  892 ;  In  re  Johnson,  87  la.  130,  54  N.  W.  69  ;  Foley's  Estate,  11 
Phila.  47.  If  the  adoption  is  not  a  legal  status,  it  is  doubtful,  to  say  the 
least,  whether  the  same  result  would  follow.  See  Allgood  v.  Williams,  92  Ala. 
551,  8  So.  722 ;  De  Jamett  v.  Harper,  45  Mo.  App.  415.  But  see  Lamar  v. 
Micou,  114  U.  S.  452. 

1  Jac.  Dom.  §§  238,  241  ;  Dicey,  Confl.  L.  121;  Whart.  Confl.  L.  §  41 ; 
Story,  Confl.  L.  §  46,  note  (c);  Potinger  r.  Wightman,  3  Meriv.  67;  Johnstone 
V.  Beattie,  10  CI.  &  F.  42,  138;  Sharpe  v.  Crispin,  L.  R.  1  P.&  D.  611  ; 
Lamar  v.  Micou,  112  U.  S.  452;  Van  Matre  v.  Sankey,  148  111.  356,  36  N.  E. 


§  38  DOMICIL   OF  FATHERLESS   INFANT.  83 

Some  question  has  been  made  whether  this  principle  applies 
in  cases  where  the  child  fails  to  actually  accompany  the  mother 
to  a  new  home,  remaining  apart  from  her  in  his  old  place  of 
abode.  Some  of  the  authorities  hold  that,  under  such  circum- 
stances, the  child's  domicil  does  not  follow  the  mother's.*  But 
the  better  view,  and  the  most  reasonable,  is  that  the  power  of 
the  widowed  mother  with  respect  to  the  infant's  domicil  is  the 
same  as  that  of  the  father,  were  he  alive.' 

It  is  sometimes  said  that  the  widowed  mother  may  change  the 
domicil  of  her  child  with  hers,  if  she  act  without  fraudulent  in- 
tent to  thereby  alter  the  rule  of  succession  to  the  child's  person- 
alty (which  depends  upon  the  law  of  the  domicil).  It  may  well 
be  doubted  whether  this  is  a  proper  qualification  of  the  rule.* 

628;  Woodward  v.  Woodward,  87  Tenn.  644;  11  S.  W.  892  ;  Mears  v.  Sin- 
clair, 1  W,  Va.  185  ;  Allen  v.  Thomason,  11  Humph.  (Tenn.)  536,  54  Am. 
Dec.  55,  57,  note  ;  Succession  of  Lewis,  10  La.  Ann.  789,  63  Am.  Dec.  600, 
601,  602;  School  Directors  v.  James,  2  W.  &  S.  (Penn.)  568,  37  Am.  Dec. 
625;  Freetown  v.  Taunton,  16  Mass.  52;  Dedham  v.  Natick,  16  Mass.  135. 
In  De  Jarnett  v.  Harper,  45  Mo.  App.  415,  it  was  held  that  the  domicil  of  a 
widowed  mother,  even  though  she  had  been  adjudged  a  lunatic,  fixes  the 
municipal  domicil  of  her  child,  and  determines  the  jurisdiction  of  the  court 
to  appoint  a  guardian.  The  incompetence  or  unfitness  of  the  mother  as  a 
guardian,  says  the  court  in  that  case,  can  only  be  tried  by  the  court  of  the 
county  where  she  is  domiciled. 

2  See  Jac.  Dom.  §  241 ;  Dicey,  Confl.  L.  122-123. 

8  Sharpe  v.  Crispin,  L.  R.  1  P.  &  D.  611;  Lamar  v.  Micou,  112  U.  S.  452; 
Van  Matre  v.  Sankey,  148  111.  356,  36  N.  E.  628  ;  Woodward  v.  Woodward, 
87  Tenn.  644,  11  S.  W.  892  ;  Allen  v.  Thomason,  11  Humph.  (Tenn.)  536, 
54  Am.  Dec.  55,  57,  note  ;  Mears  v.  Sinclair,  1  W.  Va.  185  ;  Succession  of 
Lewis,  10  La.  Ann.  789,  63  Am.  Dec.  600, 601-602 ;  School  Directors  v.  James, 
2  W.  &  S.  (Penn.)  568,  570,  37  Am.  Dec.  525;  Dedham  v.  Natick,  16  Mass. 
135. 

*  Dicey,  Confl.  L.  126,  127;  Potinger  v.  Wightman,  3  Mertv.  67  ;  School 
Directors  v.  James,  2  W.  &  S.  (Penn.)  568,  569,  37  Am.  Dec.  525,  526; 
Wheeler  v.  HoUis,  19  Tex.  522,  70  Am.  Dec.  363,  365.  No  reason  can  be 
urged  why  this  qualification  should  be  attached  in  the  case  of  the  mother, 
which  would  not  apply  with  equal  force  to  the  father.  Yet  it  is  never  applied 
to  restrict  the  father's  power  to  change  the  child's  domicil.  Mr.  Jacobs  argues 
against  it  with  force.  He  says:  "  Suppose  that  for  the  purpose  of  affecting 
the  personal  succession,  a  mother  carries  with  her  her  infant  child  into  another 
State  or  a  foreign  country,  and  the  child,  instead  of  dying  there,  should  live 
Wid  grow  up  to  maturity.     Can  it  be  doubted  that  his  general  legal  capacity 


84  EFFECT  OF  REMABRIAGE   OF  THE  MOTHER.       §  39 

§  39.  Effect  of  Remarriage  of  the  Mother. —  A  woman,  upon 
marriage,  generally  ceases  to  have  the  power  to  choose  her  own 
domicil.  The  law  fixes  it,  independently  of  her  volition,  as 
that  of  her  hushand,  whether  she  actually  resides  with  him  or 
at  his  domicil  or  elsewhere.  She  becomes  a  part  of  her  hus- 
band's family  and  thereby  ceases  to  be  the  head  of  her  own.* 

Since  therefore  her  domicil  becomes  subordinate  to  her  hus- 
band's, and  since  he  owes  no  legal  duty  to  provide  the  step- 
children with  a  home,  some  of  the  authorities  hold  that  the 
domicil  of  the  wife's  minor  children,  from  the  time  of  her  re- 
marriage, ceases  to  follow  any  further  change  of  domicil  by  the 
stepfather  and  his  wife,  but  remains  where  it  was  at  the  time 
of  the  mother's  second  marriage,  until  she  again  becomes  dis- 
covert, or  until  the  children  arrive  at  maturity  and  select 
domicils  of  their  own.*^ 

Othe.r_authorities  seem  to  hold  that  the  question  turns  upon 
whether  Jhe  cYniAactiLally  changea.  its -residence  to  the  domicil 
of  the  stepfather^  jfj  after  herjcemairiage,  the  infant  actually 
lives  with  the  mother^js-Jihe  stjftpfathftr'a  home,  then  that  be- 
comes his  domicil.  Otherwije^  the  child  retains  the  former 
domicil.* 

would  be  determined  by  the  laws  of  the  new  place  ?  Can  it  be  doubted  that 
his  personal  property  would  be  taxable  there «...  It  seems  therefore  more 
logical  to  hold  that  while  courts  would  interpose  to  defeat  the  fraudulent  de- 
sign with  which  a  parent  had  attempted  to  change  the  domicil  of  his  or  her 
infant  child,  they  would  not  do  so  upon  the  ground  that  the  change  of  domicil 
had  not  been  accomplished,  but  rather  upon  the  ground  that,  in  the  particular 
case,  the  usual  legal  eflfect  could  not  be  given  to  the  change  of  domicil,  so  as 
to  assist  in  the  i)erpetration  of  the  fraud."  Jac.  Dom.  §  243.  But  see  Mears 
V.  Sinclair,  1  W.  Va.  185. 

1  Post,  §  46;  School  Directors  v.  James,  2  W.  &  S.  (Penu.)  568,  569, 
37  Am.  Dec.  525,  526  ;  Allen  v.  Thomason,  11  Humph.  (Tenn.)  536,  54  Am. 
Dec.  55,  57  ;  Lamar  v.  Micou,  112  U.  S.  452. 

2  Jac.  Dom.  §  244;  Dicey,  Confl,  L.  125,  126;  Lamar  v.  Micou,  112 
U.  S.  452;  "Woodward  v.  Woodward,  87  Tenn.  644,  11  S.  W.  892,  896 ;  Allen 
».  Thomason,  11  Humph.  (Tenn.)  536,  64  Am.  Dec.  55,  57 ;  School  Directors 
V.  James,  2  W.  &  S.  (Penn.)  568,  569,  87  Am.  Dec.  525,  526  ;  Mears  v.  Sin- 
clair, 1  W.  Va.  185;  Freetown  v.  Taunton,  16  Mass.  52;  Brown  v.  Lynch, 
2  Bradf.  (N.  Y.)  214. 

*  See  Blythe  v.  Ayres,  96  CaL  532,  31  Pac.  915,  919  ;  Succession  of  Lewis, 


§  40  CONSTBtrCTIVB  DOMICIL  OP   ORPHAK.  85 

The  second  view  is  more  consonant  with  reason.  It  must  be 
admitted  that  thT'fiKt'  doctrine  leaves  out  of  consideration  the 
strong  moral  duty  resting  upon  the  mother  to  provide  her  infant 
children  with  a  home,  as  well  as  other  necessaries  —  a  duty 
which  rests  upon  her  no  less  strongly  after  her  remarriage  than 
during  her  widowhood.  It  moreover  disregards  the  usual  trend 
of  events  in  such  cases,  and  instead  of  assuming  to  be  true  what 
is  true  in  most  cases,  as  in  other  instances  of  constructive 
domicil,  it  assumes  to  be  true  what  in  most  cases  is  known  to 
be  false.  For  though  in  law  the  widowed  mother  ceases  proba- 
bly upon  her  remarriage  to  be  the  natural  guardian  of  her  infant 
children,  and  to  be  as  such  entitled  to  the  care  and  custody  of 
their  persons,  in  fact  it  is  otherwise  in  the  vast  majority  of 
eases.  Indeed  the  last  doubt  as  to  the  fact  must  be  dismissed 
»yhen  we  suppose  the  children  actually  to  reside  with  their 
toother  and  her  husband.* 

§  40.  Constrnctive  Domicil  of  Orphan.  —  ITpoB^he  principle 
that  a  domicil  once  acquired  is^ retained  until  another  is  gained, 
the  settled  rule  is  that  a  minor^  both_ofjwhose_parents^ are-dead, 
will  retajBTjlie  last  domicil  -of  ih^Jas^tjauDdvin^pjarent,  until  It 
is  legally  changed.  This^clMuige  the  ^infant  cannot  himseH 
make  nniiX^j^hg^omoa-SuiJuris.  The  law  fixes  his  domicil  for 
him  during  his  minority,  regardless  of  the  place  of  his  actual 
abode.^ 

But  although  the  authorities  are  agreed  that  an  orphaned  in- 
fant cannot  by  his  own  act  change  his  domicil,  they  are  much 
dividied  upon  the  question  as  to  the  power  of  his  guardian  in 

10  La.  Ann.  789,  63  Am.  Dec.  600,  601-602 ;  Wheeler  ».  Hollis,  19  Tex.  522, 
70  Am.  Dec.  363,  367  ;  Brown  v.  Lynch,  2  Bradf.  (N.  Y.)  214.  In  Suoces- 
eion  of  Lewis,  supra,  the  mother  had  been  appointed  the  guardian  of  her  child. 
In  Wheeler  v.  Hollis,  supra,  the  stepfather  had  been  appointed  the  child's 
guardian. 

*  See  Story,  Confl.  L.  §  46,  note  (c);  Wheeler  v.  Hollis,  19  Tex.  52J, 
70  Am.  Dec.  363,  367  ;  Blythe  v.  Ayres,  96  Gal.  532,  31  Pac.  915,  919, 19 
L.  R.  A.  40  ;  Dalhousie  v.  M'Douall,  7  CI.  4  F.  817. 

1  Van  Matre  ».  Sankey,  148  111.  356,  36  N.  E.  628 ;  School  Directors  v. 
James,  2  W.  &  S.  (Penn.)  568,  37  Am.  Dec.  525,  527.     See  I^mar  v.  Micou, 
112  U.  S.  452 ;  Woodward  v.  Woodward,  87  Tenn.  644,  11  S.  W.  892,  896 
Holyoke  r.  Haskins.  5  Pick.  (Mass.)  20,  25-26,  16  Am.  Dec.  371 


86  C50NSTRUCTIVB  DOMICIL  OF   ORPHAN.  §  40 

this  respect.*  The  examination  of  this  point  will  lead  us  to 
review  briefly  the  several  kinds  of  guardians  and  their  rights 
and  duties,  and  then  to  consider  especially  the  guardian's  power 
with  reference  to  the  ward's  domicil. 

The  law  admits  two  general  classes  of  guardians,  those  hav- 
ing the  custody  and  care  of  the  ward's  'person  and  those  having 
the  custody  of  his  estate.  The  first  class  was  known  to  the 
Roman  law  as  tutors,  the  second  as  curators.  Under  the  modi- 
fied system  of  the  common  law,  as  it  exists  generally  in  England 
and  the  United  States,  there  are  three  main  classes  of  guardians : 
the  guardian  by  nature,  or  natural  guardian  ;  the  guardian  by 
appointment  of  court,  or  the  appointed  guardian ;  and  the  tes- 
tamentary  guardian. 

1.  The  guardian  by  nature  has  charge  of  the  ward's  person 
onli/y  and  the  care  of  his  education.  The  father  is  primarily 
the  natural  guardian  of  a  legititnate  child,  or  if  he  be  dead,  the 
mother,  so  long  as  she  remains  unmarried  and  is  fit  for  the 
trust.  If  the  child  is  illegitimate,  the  case  is  like  that  of  a 
legitimate  child  whose  father  is  dead;  the  mother  is  the  natural 
guardian.  If  both  parents  be  dead,  then  it  seems,  according  to 
the  common  law,  that  any  lineal  ancestor  of  the  minor  to  whom 
he  is  heir  may  be  the  natural  guardian.  The  father  has  the 
first  claim;  the  mother  the  second;  and  amongst  more  remote 
ancestors,  such  as  grandparents,  etc.,  he  who  first  obtains  pos- 
session of  the  infant,  pursuant  to  the  maxim,  in  cequali  jure, 
melior  est  conditio  possidentis.^ 

2.  The  guardianship  by  appointment  embraces  both  the  care 
of  the  person  and  of  the  property  of  the  ward.  But  it  applies 
to  the  ward's  person  only  in  the  event  that  there  is  no  natural 
guardian.*     It  must  be  observed  that  the  appointed  guardian, 

2  See  Jac.  Dom.  §§  249  at  seq. ;  Whart.  Confl.  L.  §§  41,  42  ;  Dicey,  Confl. 
L.  123. 

8  Jac.  Dom.  §  245  ;  1  Minor's  Insts.  (4th  ed.)  452 ;  1  Bl,  Com.  461  ; 
Lamar  v.  Micou,  114  U.  S.  218  ;  Darden  v.  Wyatt,  15  Ga.  414.  But  Bee 
Marheineke  r.  Grothaus,  72  Mo.  204. 

*  See  1  Minor's  Insts.  (4th  ed. )  456-457  ;  Wood  v.  Wood,  5  Pai.  Ch.  (N.  Y.) 
596,  28  Am.  Dec.  451.  Bat  see  Townsend  v.  Kendall,  4  Minn.  412,  77  Am. 
Dec.  534. 


§  41        POWEB   OF  GUABDIAN   TO  ALTBB   DOMICIL.  87 

even  wbere  there  is  no  guardian  by  nature,  has  not  the  same 
ties  of  affection  and  influence  to  draw  the  ward  to  him  as  has 
the  natural  guardian,  nor  has  he  the  same  control  over  him  iu 
fact.' 

3.  Te$tamentary  guardians  are  statutory  guardians,  depend- 
ing for  their  authority  upon  the  statutes  of  the  various  states. 
They  are  usually  given  control  of  the  person  and  property  of 
the  ward.  But,  like  an  appointed  guardian,  a  testamentary 
guardian  does  not  supersede  the  natural  guardian  in  the  custody 
of  the  child's  person,  or  the  care  of  his  education.  Nor  can  he, 
in  the  nature  of  things,  possess  the  same  control  over  the  ward 
that  the  parents  would  have. 

In  conclusion,  it  is  proper  to  observe  that,  independently  of 
statute,  these  guardianships  terminate,  as  to  male  wards  at 
twenty-one,  and  as  to  female  wards  at  twenty-one  or  marriage.* 
Even  as  to  male  wards,  the  common  law  seems  to  hold  that  mar- 
riage emancipates  the  person,  but  still  leaves  the  property  of 
the  ward  under  the  control  of  the  guardian.' 

§  41.  Power  of  Guardian  to  alter  Ward's  Domicil.  —  From 
the  brief  summary,  just  given,  of  the  various  guardians,  and 
remembering  the  principle  that  the  law,  in  establishing  a  con- 
structire  domicil,  looks  to  the  actual  probabilities  of  the  case 
and  the  presumed  choice  of  the  incompetent  party,  as  well 
as  to  the  legal  right  to  the  custody  and  control  of  the  ward, 
some  deductions  may  be  drawn  of  importance  in  the  solution 
of  the  question,  how  far  a  guardian  may  influence  the  ward's 
domicil. 

With  respect  to  the  natural  y Marc?ta?i,_uaitfid  aa  Jie  iaJiathe 
infant  by  ties  x>i  parental  love^and  obligation  on  the  one  hand, 
and  filial  dependence^ Respect,  and  duty  on  the^  other,  Itf  is 
not  difficult  to  understand  that  all  the  presumptions  of  fact,  as 
well  as  of  law,  are  in  favor^of -the  ^B©ral3ile!Ihat  thelffliinbr^s 
domicil  will  be  with  the^pareiii  wherever  he  is,  and  will  change 
with^Eis.  "TheTnfjuit  is  an  integral  part  of  his  family.     An4 

6  See  Jac.  Dom.  |§  251  et  seq. 
6  Charlestown  v.  Boston,  13  Mass.  468,  472. 

'  1  Minor's  Insts.  (4th  ed.)  464.  See  Com.  v.  Graham,  157  Mass.  78,  75" 
Washington  v.  Beaver,  3  W.  &  S.  (Penn.)  548.  549. 


88  POWEB   OF   GUARDIAN  TO  ALTEB  DOMICIL.        §  41 

such  is  the  general  rule,  not  only  where  the  natural  guardian 
is  the  father  or  the  mother,*  but  even  in  case  of  the  grand- 
parent also,  at  least  where  the  infant  actually  resides  with  him.' 
Hence,  in  the  further  consideration  of  this  much  vexed  question 
we  may  eliminate  from  the  discussion  the  right  of  the  natural 
guardian  to  change  the  minor's  domicil  and  confine  our  atten- 
tion to  the  powers  of  the  appointed  and  testamentary  guardians 
in  this  respect,  where  there  is  no  natural  guardian. 

Upon  the  rights  of  such  guardians  to  change  the  ward's 
domicil  during  his  minority  there  has  been  great  division  of 
opinion.  Some  courts  have  held  that  these  guardians  take  in 
law  the  place  of  the  parents  of  the  infant,  and  succeed  to  all  the 
powers  of  the  parents  —  amongst  others,  that  of  changing  his 
domicil.' 

Others  have  held  with  equal  positiveness  that  the  guardian's 
intentions  or  acts  have  no  effect  whatever  upon  the  ward's 
domicil,  which  remains  fixed  where  it  was  at  the  death  of  his 
last  surviving  parent  or  natural  guardian.* 

Some  of  the  cases  have  made  a  distinction  in  this  respect 
between  testamentary  guardians  and  those  appointed  by  court, 

1  Ante,  §§  37,  38. 

»  Lamar  v.  Micou,  114  U.  S.  218  ;  Darden  v.  Wyatt,  15  Ga.  414  ;  Kirkland 
V.  Whately,  4  Allen  (Mass.),  462  ;  Dresser  v.  Illuminating  Co.,  49  Fed.  257  ; 
Jac.  Dom.  §  245.  But  see  Woodward  v.  Woodward,  87  Tenn.  644,  11  S.  W, 
892. 

•  Townsend  v.  Kendall,  4  Minn.  412,  77  Am,  Dec.  534,  536  ;  Wheeler  v. 
Hollis,  19  Tex.  522,  70  Am.  Dec.  363,  365  ;  Wood  r.  Wood,  5  Pal.  Ch.  (N,  Y.) 
596,  28  Am.  Dec.  451 ;  White  v.  Howard,  52  Barb.  (N.  Y.)  294,  318  ;  Wood- 
worth  V.  Spring,  4  Allen  (Mass.),  321.  See  Lamar  v.  Micou,  112  IT.  S.  452  ; 
Talbot  V.  Chamberlain,  149  Mass.  57,  20  N.  E.  305,  3  L.  R.  A.  254.  These 
cases  relate  to  national  or  quasi-national  domicil.  Other  decisions  hold  that 
the  guardian  is  permitted  to  change  the  municipal  domicil  of  the  ward. 
See  Mills  ».  HopkinsviUe  (Ky.),  11  S.  W.  776  ;  Kirkland  v.  Whately, 
4  Allen  (Mass.),  462  ;  Holyokev.  HasMns,  5  Pick.  (Mass.)  20,  25-26,  16  Am. 
Dec.  372. 

*  Woodward  ».  Woodward,  87  Tenn.  644,  11  S.  W.  892,  896  ;  Mears  v. 
Sinclair,  1  W.  Va.  185  ;  Daniel  v.  HUl,  52  Ala.  430  ;  Hiestand  v.  Kuns, 
8  Blackf.  (Ind.)  345,  48  Am.  Dec.  481.  See  Lamar  v.  Micou,  112  U.  S.  452. 
As  to  municipal  domicil,  see  School  Directors  v.  James,  2  W.  &  S.  (Pena. ) 
568,  87  Am.  Dec.  525.     See  Jac.  Dom.  §§  261  et  seq. 


§  41        POWER   OP  GUARDIAN  TO  ALTER  DOMICIL.  89 

permitting  the  change  of  the  ward's  domicil  in  the  former  case, 
but  not  in  the  latter.  It  is  difficult  to  discover  any  valid  basis 
for  this  distinction.  •• 

With  regard  to  the  ward's  national  or  quasi-national  domicil, 
since  the  gttardiajij(ffih.ethfiiLtfiatajaen|ar^r  appoint6d)^has  no 
legal  authority  as  of  right^ve^p*hfr'per8ea-of--tEa.  ward  outside 
of  the  jnriRJirtion  whpirft  hp  is  appointftrl  an^j.qvialifipfl  as  such,* 
and  since  furthermore  the  ward  is  not  g6n«raUy4a  facLa  mein;^ 
ber  ol  his  guardian's  family,  not  expected  and  not  intending  to 
make  _his  home  permanently  with  him,'  it  would  seem  reason- 
able to  suppose  that  a  change  of  such  domicil  on  the  part  of  the 
guardian  would  not  ordinarily  cause  a  corresponding  change  of 
the  ward's. 

But  if  the  ward,  as  a  matter  of  fact,    is  a  member  of  the  . 
guardian's  family,  living  with  him  as  such,  and  actually  remov- 
ing with  him  to  his  new  abode,  his  domicil,  it  is  believed,  will 
change  with  that  of  the  guardian.^ 

As  between  a  natural  and  a  testamentary  or  appointed  guar- 
dian, it  will  be  remembered  that  the  legal  custody  of  the 
infant's  person  belongs,  by  municipal  law  as  well  as  by  the  law 

*  Jac.  Dom.  §  260 ;  Lamar  v.  Micou,  112  U.  S.  452  (a  dictum).  The  dis- 
tinction rests  upon  this  dictum  of  the  Supreme  Court,  for  which  no  reason  is 
given  and  to  sustain  which  only  one  case  (Wood  v.  Wood,  5  Pai.  Ch.  (N.  Y.) 
596,  605,  28  Am.  Dec.  451)  is  cited.  The  language  of  the  latter  case  is  ap- 
plicable to  all  guardians.     See  contra,  Mears  v.  Sinclair,  1  W.  Va.  185. 

*  Post,  §  115.  See  Lamar  v.  Micou,  112  U.  S.  452  ;  Douglas  v.  Douglas, 
L.  R.  12  Eq.  617,  625. 

''  See  Jac.  Dom.  §  251  ;  School  Directors  v.  James,  2  W.  &  S.  (Penn.) 
568,  37  Am.  Dec.  525,  527. 

8  Such  were  the  facts  in  Wheeler  v.  HoUis,  19  Tex.  522,  70  Am.  Dec.  363  ; 
White  r.  Howard,  52  Barb.  (N.  Y.)  294,  wherein  it  was  held  that  the  ward's 
doaicil  followed  the  guardian's.  See  also  Townsend  v.  Kendall,  4  Minn.  412, 
77  Am.  Dec.  534,  536.  But  in  Daniel  v.  Hill,  52  Ala.  430,  where  the  same 
state  of  facts  arose,  the  court  decided  against  a  change  of  domicil.  So  also  in 
Mears  v.  Sinclair,  1  W.  Va.  185,  which  was  the  case  of  a  testamentary  guar- 
dian. In  Wood  V.  Wood,  5  Pai.  Ch.  (N.  Y.)  596,  28  Am.  Dec.  451,  the  court 
refused  to  allow  a  testamentary  guardian  residing  in  another  state  to  remove 
the  wards  from  New  York,  where  their  mother  lived.  The  language  of  the 
decision  supports  the  proposition  that  a  guardian  may  alter  his  ward's  domicil, 
but  the  court  clearly  had  in  mind  the  state  of  facts  referred  to  in  the  text. 


90  POWER    OF   GUARDIAN  TO  ALTER   DOMIOIL.        §  41 

of  nature,  to  the  former,  so  long  as  he  remains  fit  for  the  trust. 
Hence  we  should  expect  to  find  that,  so  long  as  there  is  a 
natural  guardian  living,  the  child's  domicil  will  follow  his, 
rather  than  that  of  the  testamentary  or  appointed  guardian. 
And  this  conclusion  is  borne  out  by  the  cases.' 

It  should  be  observed  that  the  guardian  herein  alluded  to,  as 
competent  to  alter  the  ward's  domicil  with  his  own  under  cer- 
tain circumstances,  is  the  domiciliary  guardian,  the  guardian 
appointed  in  the  State  where  the  ward  is  domiciled.  If  ap- 
pointed in  a  State  where  the  ward  is  resident,  but  not  domi- 
ciled, his  powers  are  strictly  local.  He  may  be  able  to  change 
the  ward's  municipal  domicil,  but  he  cannot  affect  his  national 
or  quasi-national  domicil.^" 

With  respect  to  the  municipal  domicil  of  the  ward,  the  guar- 
dian's power  to  alter  or  affect  it  is  a  matter  of  municipal  law. 
It  seems  however  to  be  generally  conceded  that  the  powers  of 
the  guardian  in  this  respect,  there  being  no  natural  guardian,*^ 
are  much  more  extensive.  There  is  indeed  but  little  dissent 
from  the  proposition  that  a  guardian  may  change  an  orphan 
ward's  municipal  residence  whenever  such  a  course  is  for  the 
benefit  of  the  ward,  not  necessarily,  it  seems,  being  confined  in 
his  choice  to  the  place  where  he  himself  lives.  ^'^ 

There  are  several  reasons  why  the  guardian's  powers  should 
here  be  extended.  In  the  first  place  he  has  the  powers  of  a 
guardian  in  every  portion  of  the  State  of  his  appointment; 
wherever  he  places  the  ward,  he  has  the  authority  of  guardian. 
This  is  not  the  case  when  he  takes  the  ward  to  another  State." 

'  Seiter  v.  Straub,  1  Demar.  (N.  Y.)  264;  School  Directors  v.  James, 
2  W.  &  S.  (Penn.)  568,  37  Am.  Dec.  525;  Kirkland  v.  Whately,  4  Allen 
(Mass.),  462  ;  Wood  v.  Wood,  5  PaL  Ch.  (N,  Y.)  596,  28  Am.  Dec.  451  ; 
Lamar  v.  Micou,  114  U.  S.  218. 

10  Lamar  v.  Micou,  112  U.  S.  452. 

"  In  School  Directors  v.  James,  2  W.  4  S.  (Penn.)  568,  37  Am.  Dec.  525, 
it  was  held  that  a  ward's  personalty  could  not  be  taxed  in  the  borough  where 
the  guardian  lived,  the  ward  residing  with  his  mother  in  another  borough. 

12  Jac.  Dom.  §  257  ;  Lamar  v.  Micou,  112  U.  S.  452  ;  Mills  v.  Hopkinsvillo 
(Ky.),  11  S.  W.  776 ;  Kirkland  v.  Whately,  4  Allen  (Mass.),  462  ;  Holyoke  v. 
Haskins,  5  Pick.  (Mass.)  20,  25,  16  Am.  Dec.  372. 

i«  Jac.  Dom.  §  261  ;  Lamar  v.  Micou,  112  U.  S.  452  ;  Douglas  v.  DouglM, 
L.  B.  12  Eq.  617. 


I  42  DOMICIL  OF  ILLEGITIMATE   CHILD.  91 

Again,  the  removal  of  the  ward's  residence  from  one  part  of  the 
State  to  another  does  not  expose  him  to  be  subjected  to  any 
change  in  the  law  governing  him  and  his  property,  as  does  a 
change  of  his  national  domicil.  The  courts  are  very  jealous  of 
a  change  of  that  character.^*  Finally,  the  guardian  has  the 
management  of  the  ward's  estate,  and  his  pecuniary  interests 
may  often  require  a  change  of  residence,  for  example,  for  pur- 
poses of  less  rigorous  taxation, "  education,  ^'  or  cheaper  living. 

§  42.  Constructive  Domicil  of  an  niegitiniate  Child.  — 
The  father  of  a  bastard  being  unknown,  it  devolves  upon  the 
mother  to  provide  a  home  for  him,  and  she,  as  the  natural 
guardian,  has  the  custody  of  his  person  and  the  care  of  his 
education.  The  same  principles  will  apply  here  as  in  the  case 
of  a  legitimate  child  whose  father  is  dead,  and  whose  mother 
survives.^ 

The  domicil  of  the  mother  is  the  domicil  of  the  bastard,  the 
place  of  the  infant's  birth  and  the  domicil  of  the  father  being 
immaterial  elements.^  Should  the  mother  marry,  her  domicil 
will  thereafter  be  governed  by  that  of  her  husband.  "Whether 
the  bastard's  domicil  will  be  correspondingly  changed  would 
seem  to  depend  upon  whether  he  actually  resides  with  his 
mother  and  stepfather,  the  principle  being  the  same  as  in  the 
case  of  a  legitimate  child,  whose  widowed  mother  marries 
again.*  But  if  the  mother  marries  the  father  of  the  child,  it 
is  believed  the  rule  would  be  different,  even  though  legitimation 
does  not  result.  In  such  case,  it  would  seem  that  the  infant 
bastard's  domicil  would  shift  with  the  mother's,  whether  he 
actually  resides  with  his  mother  and  father  or  not. 

1*  See  Pedan  v.  Robb,  8  Ohio,  227  ;  Wheeler  v.  HoUis,  19  Tex.  522,  70  Am. 
D«c.  363. 

15  Mills  V.  Hopkinsville  (Ky.),  11  S.  W.  776 ;  Kirkland  v.  Whately,  4  Allen 
(Mass.),  462. 

16  School  Directors  v.  James,  2  W.  &  S.  (Penn.)  568,  57  Am.  Dec.  525,  527. 

1  Ante,  §§  38,  39. 

2  Jac.  Dom.  §  244,  a ;  Dicey,  Confl.  L.  120,  121 ;  "Whart.  Confl.  L.  §  37  ; 
Blythe  v.  Ayres,  96  Cal.  532,  31  Pac.  915,  19  L.  R.  A.  40. 

8  Ante,  §  39.  See  Blythe  w.  Ayres,  96  Cal.  532,  19  L.  R.  A.  40,  31  Pac 
915,  919. 


92  DOMICIL  OP  AN  ADOPTED   CHILD.  §  44 

§  43.  Constructive  Domicil  of  Child  subsequently  Legiti* 
mated.  —  At  common  law  a  child  born .  put  otja^fidlock  was  a 
bastard,  and  no  subsequent  intermarriage  of  the  .parents  or 
acknowledgment  of  the  child  bjr  theiather,  or  any-other. super- 
venient act,  would  legitimate  him.  But  by  the  Roman  or  civil 
law,  and  by  statute  in  most  of  these  States,  the  subsequent 
intermarriage  of  the  parents,  either  standing  alone,  or  coupled 
with  an  acknowledgment  by  the  father,  will  legitimate  an  ille- 
gitimate child.*  In  some  of  the  States,  the  mere  acknowledg- 
ment of  the  father,  without  marriage,  will  have  the  same  effect.* 

The  question  in  all  such  cases  is,  has  the  child  become  legiti- 
mate under  the  proper  law  ?  '  If  so,  it  is  immaterial  how  that 
result  came  about.  Thenceforth  he  is  in  exactly  the  same  posi- 
tion in  all  respects  as  if  he  wejie  born  legitimate,  and  his  domicil 
will  thereafter' lie  governed  by  the  same  rules.  It  will  follow 
the  domicil  of  his  father,  or  if  he  be  dead  thattjf  the  mother, 
so  long  as  the  child  remains  Tmdeir age; '' 

§  44.  Constructive  Domicil  Of  an  Adopted  Child.  —  Under 
the  common  law  (it  was  otherwise  by^he  civil  law)  there  was 
no  such  legal- relalJidh  as  t15at  of  adopted  child.  Such  child 
had  no  legal  right  to  look  to  the  adopting  parent  for  support  or 
home,  in  the  absence  of  special  contract,  or  to  succeed  to  any 
portion  of  his  property.  But  in  many,  if  not  in  most,  of  these 
States  statutes  have  been  passed  in  accordance  with  the  civil 
law,  permitting  this  relation  to  be  created  upon  the  observance 
of  certain  formalities.  These  statutes  generally  impose  upon 
the  adopting  parent,  after  the  adoption,  the  same  duties  that 
the  law  places  upon  him  in  respect  to  his  own  children.  The 
natural  parents  or  the  guardians  surrender  their  control  to  the 
adopting  parent,  and  he,  on  the  other  hand,  must  supply  to 
the  adopted  child  all  the  necessaries  he  would  be  bound  to 
supply  to  his  own  children,  amongst  other  things,  a  home.* 

1  See  Ross  v.  Ross,  129  Mass.  243,  249,  37  Am.  Rep.  321. 

»  See  Blythe  v.  Ayres,  96  Cal.  532,  31  Pac.  915,  19  L.  R.  A.  40. 

•  For  the  proper  law  to  determine  this  question,  see  post,  §§  98-100. 

1  Ross  V.  Ross,  129  Mass.  243,  263,  37  Am.  Rep.  321 ;  Washburn  v.  White, 
140  Mass.  558 ;  Foster  v.  Waterman,  124  Mass.  592 ;  Woodward  r.  Wood- 
ward, 87  Tenn.  644,  11  S.  W.  892,  896. 


§  46  DOMICIL   OP  A  MARRIED   INFANT.    •  93 

Under  such  a  state  of  the  law,  the  adopting  parent  hecomea 
the  natural  guardian  of  the  child,  and  his  domicil  becomes  that 
of  the  child  also,' 

Possibly  this  result  may  also  follow,  even  in  the  absence  of 
legal  adoption,  in  cases  where  the  parents  are  dead,  and  the 
children  are  taken  to  distant  localities,  to  be  reared  by  relatives 
or  others  interested  in  the  orphans.*  But  if  the  parents  or 
either  of  them  be  alive,  it  would  seem  that,  lio  ^pattftr  ^in^ 
clearly  they  may  intend  or  agree  to  surrender  the  control  of 
the  child,  its  domicil  is  not  thereby  changed.* 

§  45.  Domicil  of  a  Married  I^anCr=>-  As  we  have  seen  in 
speaking  of  the  functions  of  guardians,^  it  is  the  better  opinion 
that  at  common  law,  even  as  to  male  wards,  all  guardianship 
ceases,  so  far  as  the  ward's  person  is  concerned,  at  twenty-one 
or  marriage.  In  jurisdictions  where  this  is  the  rule  it  follows 
that  if  a  minor  is  married  and  has  a  family  and  home  of  his 
own,  he  becomes  "emancipated,"  and  may  acquire  a  domicil  of 
choice.* 

If  the  infant  is  a  female  and  marries,  she  merely  exchanges 
one  dependence  for  another.  lier  domicil  ceases  to  be  that  of 
her  parents  and  becomes  that  of  her  husband,'  even  though  she 
continues  to  reside  with  her  parents,  provided  the  husband  be 
in  no  default.* 

An  interesting  question  might  be  raised  as  to  the  domicil  of 

2  See  cases  above  cited.  See  also  In  re  Johnson,  87  la.  130,  54  N.  W.  69 ; 
Foley's  Estate,  11  Phila.  47  ;  Jac.  Dom.  §§  247,  248. 

'  See  Lamar  v.  Micou,  114  U.  S.  218  (the  child  here  resided  with  the 
grandparent,  whom  the  court  held  to  be  the  natural  guardian)  ;  Dresser  v. 
Illuminating  Co. ,  49  Fed.  257  (also  case  of  grandparent)  ;  Cutts  v.  Haskins, 
9  Mass.  543  (case  of  brother).  But  see  "Woodward  v.  Woodward,  87  Tenn. 
644,  11  S.  W.  892,  896,  criticising  Lamar  v.  Micou,  supra. 

*  De  Jarnett  v.  Harper,  45  Mo.  App.  415.  See  Armstrong  v.  Stone, 
9Gratt.  (Va.)  102. 

1  Ante,  §  40. 

2  Whart.  Confl.  L.  §  41 ;  Allgood  v.  Williams,  92  Ala.  551,  8  So.  722 ; 
Van  Matre  v.  Sankey,  148  111.  356,  36  N.  E.  628;  Washington  v.  Beaver, 
3  W.  &  S.  (Penn.)  548,  549.  See  Com.  v.  Graham,  157  Mass.  73,  75.  But 
see  Jac.  Dom.  §§  231,  232  ;  Dicey,  Confl.  L.  128,  129. 

'  See  the  following  sections. 

*  Charlestown  v.  Boston,  13  Mass.  468,  472. 


94  *        DOMICIL  OF   MARRIED   WOMAN.  §  46 

an  infant  widow  or  divorcee.  Has  she  been  emancipated  by 
the  marriage  so  as  to  give  her  power  to  change  her  domicil  at 
pleasure  upon  the  termination  of  the  coverture  ?  Is  she  thereby 
relegated  to  the  condition  of  dependence  upon  her  parents  from 
which  her  marriage  took  her  ?  Or  is  she  to  retain  her  last 
domicil  (that  of  her  husband)  until  she  becomes  twenty-one  or 
remarries?  The  first  view  seems  the  more  reasonable,  especially 
if  she  is  left  with  children  to  support  and  is  not  again  received 
into  the  bosom  of  her  parents'  family.* 

§  46.  Constructive  Domicil  of  Married  Woman.  —  It  is  a 
general  principle  of  the  common  law,  and  one  that  is  more  or 
less  inherent  in  all  systems  of  jurisprudence,  that  a  married 
woman  merges  her  legal  identity  in  her  husband's,  and  solemnly 
yields  her  will  to  his.  Hence  it  results  that  the  husband  is 
bound  to  support  her,  has  the  control  of  her  person,  and  is  en- 
titled to  her  services. 

From  this  principle  follows  the  general  rule  of  law  which 
fixes  her  domicil.  It  is  established  beyond  dispute  that  a 
woman,  upon  marriage,  immediately  acquires  the  domicil  of 
her  husband,  and  that  her  domicil  ordinarily  changes  with 
every  alteration  of  his,  regardless  of  the  actual  locality  of  her 
residence  after  the  marriage.^ 

This  rule  is  founded  not  only  on  the  above-mentioned  prin- 

•  Warrender  v.  Warrender,  2  CL  &  F.  488,  525.  But  Mr.  Dicey  favors  the 
last  view.     Dicey,  Confl.  L.  130,  note  1. 

1  Jac.  Dom.  §§  209,  213,  214;  Barber  v.  Barber,  21  How.  582 ;  Cheely  v. 
Clayton,  110  U.  S.  701,  705;  Suter  v.  Suter,  72  Miss.  345,  16  So.  674;  Burtis 
V.  Burtis,  161  Mass,  508,  510  ;  Watkins  v.  Watkins,  135  Mass.  83,  85  ;  Hunt 
r.  Hunt,  72  N.  Y.  217,  28  Am.  Rep.  129 ;  Hill  v.  Hill,  166  111.  54,  46  N.  E. 
751,  752  ;  White  v.  White,  18  R.  I.  292,  27  Atl.  506;  Kline  v.  Kline,  57  la. 
386,  10  N.  W.  825,  826 ;  Arrington  v.  Amngton,  102  N.  C.  491,  9  S.  E.  200 ; 
Harding  v.  Alden,  9  Greenl.  (Me.)  140,  23  Am.  Dec.  549;  Williams  v.  Saun- 
ders, 5  Coldw.  (Tenn.)  60;  Smith  v.  Smith,  19  Neb.  706,  28  N.  W.  296,  298  ; 
Champon  v.  Champon,  40  La.  Ann.  28,  3  So.  397,  399  ;  Shreck  v.  Shreck,  32 
Tex.  578,  5  Am.  Rep.  251,  252  ;  Harrison  v.  Harrison,  20  Ala.  629,  56  Am. 
Dec.  227;  Jenness  v.  Jenness,  24  Ind.  355,  87  Am.  Dec.  335  ;  Harral  v.  Har- 
ral,  39  N.  J.  Eq.  379,  51  Am.  Rep.  17,  23 ;  Dougherty  v.  Snyder,  15  S.  &  B. 
(Penn.)  84,  16  Ani.  Dec.  520 ;  Magnire  v.  Maguire,  7  Dana  (Ky.),  181,  186; 
Warrender  v.  Warrender,  2  CI.  &  F.  488. 


§  46  DOMICIL   OF  MARRIBD   WOMAN.  96 

ciple  of  identity  '  and  upon  the  duty  she  owes  to  submit  her  will 
to  her  husband's, '  but  also  on  the  broader  ground,  the  operation 
of  which,  with  respect  to  constructive  domicil,  has  already  been 
noticed,  that  the  law  will  presume  that  to  be  true  which  is  true 
in  the  great  majority  of  cases.^ 

Hence  this  general  rule  does  not  apply  when  the  relations  of 
the  husband  and  wife  are  of  an  abnormal  character.  IfThey  are 
divorceH^or  contemplate  divoree,  or-  il  the.  iusband  deserts  the 
wife,  becomes  insaneor^  otherwise  incompetent  to  be  the  head 
of  the  family  and  to  furnish  her  with  a  support  and  a  home,  an 
abnormal  conditTon-  Testtlta-  which  will  sometimes  prevent  the 
operation  of  the  rule,  and  will  authorize  the  wife  to  select  a 
domicil  apart  from  that  of  her  husband.  Indeed  it  has  been 
said  by  an  eminent  tribunal*  that  **the  rule  is  that  she  may 
acquire  a  separate  domicil  whenever  it  is  right  and  proper  that 
she  should  do  so.  The  right  springs  from  the  necessity  for  its 
exercise  and  endures  as  long  as  the  necessity  continues." 

The  general  rule,  however,  is  in  the  main  strictly  adhered  to. 
Save  in  a  few  exceptional  cases,  presently  to  be  adverted  to,  the 
wife  cannot  acquire  a  domicil  separate  and  apart  from  her  hus- 
band, though  she  actually  lives  in  a  different  State,  or  even 
though  they  actually  reside  apart   by  agreement  or  under  a 

«  Harteauv.  Harteau,  14  Pick.  (Mass.)  181,  25  Am,  Dec.  372;  Burtis  v. 
Burtis,  161  Mass.  508,  510 ;  Harrison  v.  Harrison,  20  Ala.  629,  56  Am.  Dec. 
227,  229  ;  Smith  v.  Smith,  19  Neb.  706,  28  N.  W.  296,  298 ;  Dutcher  v. 
Dutcher,  39  Wis.  651 ;  Jenness  v.  Jenness,  24  Ind.  355,  87  Am.  Dec.  335 ; 
Hunt  V.  Hunt,  72  N.  Y.  217,  243 ;  O'Dea  v.  O'Dea,  101  N.  Y.  23,  36. 

*  Barber  v.  Barber,  21  How.  582 ;  Dedham  v.  Natick,  16  Mass.  135 ;  Har- 
teau V.  Harteau,  14  Pick.  (Mass.)  181,  25  Am.  Dec.  372 ;  Harding  v.  Alden, 
9  Greenl.  (Me.)  140,  23  Am.  Dec.  549 ;  Jenness  v.  Jenness,  24  Ind.  355,  87 
Am.  Dec.  335 ;  Hunt  v.  Hunt,  72  N.  Y.  217,  243 ;  Colbum  v.  Holland,  14 
Rich.  Eq.  (S.  C.)  176,  229. 

*  Harteau  i;.  Harteau,  14  Pick.  (Mass.)  181,  25  Am.  Dec.  372  ;  Mason  v. 
Homer,  105  Mass,  116  ;  Hunt  v.  Hunt,  72  N.  Y.  217,  243,  28  Am.  Rep.  129 ; 
Dutcher  v.  Dutcher,  39  Wis.  651 ;  Cook  v.  Cook,  56  Wis,  195,  43  Am,  Rep. 
706,  14  N.  W.  33,  34  ;  Smith  v.  Smith,  19  Neb,  706,  28  N,  W.  296  ;  War- 
render  v.  Warrender,  2  CI,  &  F.  488,  523-524  (opinion  of  Lord  Brougham). 

5  The  Supreme  Court  of  the  United  States  in  Cheever  v.  Wilson,  9  Wall. 
108,  124.  See  also  Hunt  v.  Hunt,  72  N.  Y,  217,  243,  28  Am.  Rep.  129; 
Harteau  v.  Harteau,  14  Pick.  (Mass.)  181,  25  Am,  Dec.  372. 


96  DOMICIL  OP  DESERTED   WIFE.  §  47 

deed  of  separation.'  It  is  otherwise,  as  we  shall  presently  see, 
if  there  be  a  judicial  separation.'' 

Even  if  the  wife  is  induced  to  leave  the  husband  because  of 
his  ill-treatment  and  harshness,  or  for  reasons  that  would  give 
her  the  right  to  apply  for  a  separation  or  a  divorce  a  vinculo,  if 
she  do  not  actually  ask  for  one,  and  until  she  does,  his  domicil 
will  still  be  hers.*  But  should  she  apply  for  a  divorce,  and  for 
that  purpose  change  her  domicil,  it  would  remain  changed  for 
all  purposes ;  otherwise  she  would  have  two  domicils.' 

But  there  may  be  exceptional  circumstances  surrounding  the 
wife  that  make  it  necessary  that  she  should  in  some  cases  be 
capable  of  selecting  a  domicil  apart  from  her  husband.  To  hold 
otherwise  would  in  many  instances  result  in  grievous  injustice 
to  her.^"  These  more  or  less  abnormal  conditions  will  now  be 
considered. 

§  47.  Domicil  of  a  Deserted  "Wife.  —  If  the  wife  applies  for 
a  separation  or  a  divorce  a  vinculo  because  of  the  husband's  de- 

•  Jac.  Dom.  §§  215,  216;  Barber  v.  Barber,  21  How.  582;  Greene  v. 
Greene,  11  Pick.  (Mass.)  409,  415;  Hood  v.  Hood,  11  Allen  (Mass.),  196,  199, 
87  Am.  Dec.  709  ;  Williams  v.  Saunders,  5  Coldw,  (Tenn.)  60,  79;  Dougherty 
V.  Snyder,  15  S.  &  R.  (Penn.)  84,  16  Am.  Dec.  520;  Warrender  v,  Warrender, 
2  01.  &  F.  488,  524.  There  are  a  few  cases  holding  that  a  permanent  depart- 
ure of  the  wife  from  the  husband's  home  destroys  her  domicil  there,  even 
though  it  be  the  result  of  an  amicable  arrangement.  See  Colburn  v.  Holland, 
14  Rich.  Eq.  (S.  C.)  176,  229;  Florance's  Will,  54  Hun  (N.  Y.),  328.  7  N.  Y. 
Suppl.  578;  Cook  v.  Cook,  56  Wis,  195,  43  Am.  Rep.  706,  14  N.  W.  33,  34; 
Smith  V.  Smith,  19  Neb.  706,  28  N.  W.  296,  298  ;  Chapman  v.  Chapman,  129 
111.  886,  21  N.  E.  806.  In  most  of  these,  there  were  peculiar  circumstances, 
such  as  the  pendency  of  divorce  or  the  desertion  of  the  husband,  which  took 
the  case  out  of  the  operation  of  the  general  rule. 

">  Post,  §  52;  Hunt  v.  Hunt,  72  N.Y.  217,  243,  28  Am.  Rep.  129. 

8  Dolphin  V.  Robins,  7  H.  L.  Cas.  390  ;  Harrison  v.  Harrison,  20  Ala.  629, 
66  Am.  Dec.  227,  229;  Shawr.  Shaw,  98  Mass.  158  ;  Loker  v.  Gerald,  157  Mass, 
42,  31  N.  E,  709,  710  ;  Hunt  v.  Hunt,  72  N.  Y.  217,  243,  28  Am.  Rep.  129  ; 
Maguire  ».  Maguire,  7  Dana  (Ky.),  181,  186;  Harding  v.  Alden,  9  Greenl. 
(Me.)  140,  23  Am.  Dec.  549;  Smith  v.  Smith,  43  La.  Ann.  1140,  10  So.  248. 
But  see  Florance's  Will,  54  Hun  (N.  Y.),  328,  7  N.  Y.  Suppl.  578.  See  Jaa. 
Dom.  §  223. 

«  Ante,  §  28.     See  Jac.  Dom.  §  226 ;  Dolphin  v.  Robins,  7  H.  L.  Cas.  390. 

10  Cheever  v.  Wilson,  9  Wall.  108,  124  ;  Hunt  v.  Hunt,  72  N.  Y.  217,  243, 

28  Am.  Rep.  129  ;  Harteau  v.  Harteau,  14  Pick.  (Mass.)  181, 25  Am.  Dec.  372. 


§  47  DOMICIL  OP   DESERTED   WIFE.  97 

sertion,  it  is  nowwell  eatahlished  that_she  may  renounce  the 
constructive  domicil  created  by  the  marriagestatus,  and  actpiire 
a  separate  domicil  of  her  own  where  she  may  obtain  a  divorce/ 

TKe^"ques¥ion  becomes  more  complicated  if  we  suppose  the 
wife  unwilling  or  without  intention  to  obtain  a  divorce,  or  if  the 
question  should  arise  before  she  has  begun  to  put  such  intention 
into  effect."  It  has  been  said  by  some  eminent  authorities  that 
the  doctrine  of  the  wife's  separate  domicil,  under  such  circum- 
stances, does  not  extend  beyond  cases  of  divorce,*  or  as  it  is 
sometimes  put,  beyond  proceedings  whose  "  express  object  is  to 
show  that  the  relation  itself  ought  to  be  dissolved  or  so  modified 
as  to  establish  separate  interests,  and  especially  a  separate  dom- 
icil and  home  ;  bed  and  board  being  put,  a  part  for  the  whole,  as 
expressive  of  the  idea  of  home."  * 

It  is  believed  that  this  is  the  proper  solution  in  those  cases 
(e.  g.  adultery  or  cruelty)  where  the  husband's  offense  does  not 
go  to  the  extent  of  depriving  the  wife  of  his  support  or  of  a  home 
provided  by  him.  And  the  cases  do  not  take  a  position  beyond 
this.  There  is  good  reason  for  this  doctrine.  The  wife  by  her 
silence  may  be  taken  to  have  signified  her  intention  to  condone 
the  offense,  if  indeed  any  has  been  committed.  And  if  it  be 
alleged  that  she  has  not  condoned  it,  the  difficulties  in  the  way 
of  establishing  the  wrongs  alleged  in  a  collateral  inquiry  would 
be  insurmountable.® 

1  Barber  v.  Barber,  21  How.  582,  594,  595 ;  Harteau  v.  Harteau,  14  Pick. 
(Mass.)  181,  25  Am.  Dec.  372  ;  Hood  v.  Hood,  11  Allen  (Mass.),  196,  199,  87 
Am.  Dec.  709  ;  Blackinton  v.  Blackinton,  141  Mass.  432,  435  ;  Hunt  v.  Hunt, 
72  N.  Y.  217,  242-243,  28  Am.  Rep.  129  ;  Harding*.  Alden,  9Greenl.  (Me.) 
140,  23  Am.  Dec.  549;  White  v.  White,  18  K.  I.  292,  27  Atl.  506;  Kline  u. 
Kline,  57  la.  386,  10  N,  W.  825,  826. 

^  For  example,  should  the  deserted  wife  die  without  taking  any  step  to- 
wards the  prosecution  of  a  divorce  suit.  The  disposition  of  her  personal 
estate  depends  upon  the  law  of  her  domicil  at  the  time  of  her  death.  See 
post,  §§  139-141. 

«  See  Jac.  Dom.  §§  226,  227;  Dolphin  v.  Robins,  7  H.  L.  Cas.  390  ;  Yel- 
verton  v.  Yelverton,  1  Swab.  &  Tr.  574,  29  L.  J.  (P.  &  M.)  34;  Burtia  v. 
Bui-tis,  161  Mass.  508,  510-511. 

*  Harteau  v.  Harteau,  14  Pick.  (Mass.)  181,  25  Am.  Dec.  372. 

»  See  Jac.  Dom.  §§  226,  227;  Dolphin  v.  Robins,  7  H.  L.  Cas.  390. 

7 


98  DOMICIL   OP  WIFE   WHO   DESERTS   HUSBAND.      §  48 

But  where  the  improper  act  of  the  husband  is  one  that  amounts 
to  a  total  renunciation  of  the  marriage  relation,  as  in  case  of 
desertion,  and  as  a  result  the  wife  is  left  to  make  her  own  way  in 
the  world  and  by  her  own  endeavors  to  provide  a  home  for  her- 
self and  her  family,  it  would  seem  to  be  a  great  injustice  to  deny 
her  the  right  to  make  her  legal  as  well  as  her  actual  home  in  any 
place  which  will  promise  her  a  livelihood,  uutrammeled  by  pre- 
sumptions of  law  favorable  to  the  husband,  which  he  himself 
has  outrageously  cast  aside.  It  is  submitted  therefore  (with 
deference)  that  the  wife,  even  without  divorce,  should  be  per- 
mitted to  alter  her  domicil  when  deserted  by  her  husband,  espe- 
cially when  he  has  added  to  his  desertion  the  offense  of  taking 
with  him  a  paramour,  or  otherwise  rendering  his  new  home  un- 
inhabitable by  his  wife.' 

In  Florance's  Will,^  the  wife  lived  apart  from  her  husband  by 
mutual  agreement  for  a  number  of  years,  during  which  time  the 
children  lived  with  her  and  were  wholly  supported  by  her,  the 
husband  living  in  another  State  and  contributing  nothing  to 
the  support  of  his  wife  or  children.  She  was  held  to  acquire  a 
domicil  in  the  State  where  she  thus  lived,  so  that  the  husband's 
rights  in  her  personal  estate  at  her  decease  were  governed  by  the 
laws  of  that  State,  not  by  the  law  of  her  husband's  domicil. 

It  would  seem,  upon  the  same  principle,  if  the  husband  is 
under  restraint  for  hopeless  lunacy,  or  is  confined  for  life  upon 
conviction  of  crime,  that  the  wife  should  in  such  cases  also  be 
permitted  to  select  a  new  legal  domicil  for  herself,  should  she 
desire  to  do  so.' 

§  48.  Domicil  of  Wife  who  Deserts  her  Husband. — The 
wife  who  deserts  her  husbandj'eren^  though  fo_r_a_£aaisewhich 

6  Champon  v.  Champon,  40  La.  Ann.  28,  3  So.  397,  399 ;  Smith  v.  Smith, 
43  La.  Ann.  1140,  10  So.  248,  249  ;  Barber  v.  Barber,  21  How.  582,  594,  595  ; 
Chapman  v.  Chapman,  129  111.  386,  21  N.  E.  806 ;  Cummington  v.  Belcher- 
town,  149  Mass.  223,  226,  21  N.  E.  435  ;  Blackintonr.  Blackinton,  141  Mass. 
432,  435  ;  Harding  v.  Alden,  9  Greenl.  (Me.)  140,  23  Am.  Dec  549  ;  Dutcher 
r.  Dutcher,  39  Wis.  651,  659 ;  Doerr  v.  Forsythe,  50  Ohio  St.  726,  36  N.  E. 
1055. 

^  54  Hun  (N.  Y.),  328,  7  N.  Y.  Suppl.  578. 

«  See  post,  §  49  ;  Whart.  Confl.  L.  §  44  ;  McPherson  v.  Honsel,  2  Beasley 
CN.  J.),  85,  13  N.  J.  Eq.  35. 


§  48      DOMICIL  OF   WIFE  WHO   DESERTS   HUSBAND.  99 

would-lje^round  for  a  divnp^ft,  nr  wTiip.h  wnnlrl  fnnafifiT^t^^  good 
defence  to  a  suit  bv  the  husband  for  a  restitutiaa-of  conjugaF 
riglifsfj  wil]  ^fillj  according  to  the  great  weighty  modefn  o\i«^ 
th^Hty,  bp  h"^d  to  rp|ain_the  domicil  of  Jiar  husbands  Hjiless 
she  sues  for  divorce.^  But  if  she  does  institute  divorce  proceed- 
ings she  may  acquire  a  new  domicil  for  the  purpose.  It  is  not 
essential  that  she  should  have  left  her  husband  with  that 
intent.* 

It  is  also  worthy  of  observation  in  this  connection  that  the 
law  requires  the  wife  to  cling  to  her  husband  and  to  follow  him 
into  whatever  country  the  necessities  of  health  or  of  business 
require  him  to  make  his  home.  Her  refusal  to  accompany  him 
without  legal  excuse,  and  his  departure  alone,  constitute  a  de- 
sertion on  her  part,  not  on  his.  In  such  cases,  her  domicil  fol- 
lows that  of  her  husband.' 

But  if  the  husband  refuses,  without  good  cause,  or  refuses 
except  upon  unreasonable  conditions,  to  permit  the  wife  to  live 
with  him,  and  departing  to  another  State  sues  her  there  for  di- 

1  See  Whart.  Confl.  L.  §  43 ;  Jac.  Dom.  §§  226,  227  ;  Dolphin  v.  Robins, 
7  H.  L.  Cas.  390 ;  Yelverton  v.  Yelverton,  1  Swab.  &  Tr.  574,  29  L.  J,  (P.  4 
M.)  34  ;  Smith  v.  Smith,  43  La.  Ann.  1140, 10  So.  248,  249 ;  Barber  v.  Bar- 
ber, 21  How.  582;  Cheever  v.  Wilson,  9  Wall.  108,  124  ;  Shaw  v.  Shaw,  98 
Mass.  158;  Burlen  v.  Shannon,  115  Mass.  438,  447  ;  Cheely  v.  Clayton,  110 
U.  S.  701,  705;  Chapman  v.  Chapman,  129  111.386,  21  N.  E.  806;  Flower*. 
Flower,  42  N.  J.  Eq.  152,  7  Atl.  669 ;  Arrington  v.  Arrington,  102  N.  C.  491, 
9  S.  E.  200  ;  Shreck  v.  Shreck,  32  Tex.  578,  5  Am.  Rep.  251.  See  Watkins 
V.  Watkins,  135  Mass.  83,  85-86;  Florance's  Will,  54  Hun  (K  Y.),  328, 
7  N.  Y.  Suppl.  578. 

2  Flower  v.  Flower,  42  N.  J.  Eq.  152,  7  Atl.  669  ;  Chapman  v.  Chapman, 
129  111.  386,  21  N.  E.  806  ;  White  v.  White,  18  R.  I.  292,  27  Atl.  506.  But 
see  Lyon  v.  Lyon,  2  Gray  (Mass.),  367,  368. 

3  Loker  v.  Gerald,  157  Mass.  42,  43,  31  N.  E.  709,  710 ;  Burlen  v.  Shan- 
non, 115  Mass.  438,  447  ;  Hood  v.  Hood,  11  Allen  (Mass.),  196,  199,  87  Am. 
Dec.  709 ;  Watkins  v.  Watkins,  135  Mass.  83,  85-86  ;  Cheely  v.  Clayton, 
110  U.  S.  701,  705  ;  Hunt  r.  Hunt,  72  N.  Y.  217,  28  Am.  Rep.  129  ;  Larquie 
V.  Larquie,  40  La.  Ann.  457,  4  So.  335,  337  ;  Suter  v.  Suter,  72  Miss.  345, 
16  So.  674.  See  Chapman  v.  Chapman,  129  111.  386,  21  N.  E.  806.  But  see 
Heath  v.  Heath,  42  La.  Ann.  437,  7  So.  540,  which,  however,  turns  upon  a 
doctrine  of  divorce  peculiar  to  Louisiana,  namely,  that  suit  for  divorce  must  be 
brought  in  the  jurisdiction  where  the  married  pair  have  lived  together.  Se« 
«lso  O'Dea  v.  O'Dea,  101  N.  Y.  23.  38  (dissenting  opinion  of  Danforth,  J.). 


100  wife's   DOMICIL  —  HUSBAND   INSANE.  §  49 

vorce  because  of  her  desertion,  her  domicil  will  not  be  held  to 
follow  his.*  So,  if  the  wife  living  in  another  State  from  her 
husband  herself  sues  for  divorce  in  the  State  of  her  actual  resi- 
dence, she  cannot  allege  that  her  domicil  is  with  her  husband, 
in  order  to  defeat  a  cross-bill  for  divorce  filed  by  him  in  answer 
to  her  complaint.^ 

§  49.  Domicil  of  Wife  w^hose  Husbaind  is  Insane  or  other- 
wise incapacitated.  —  If  the  law  itself  has  established  the  in- 
competence or  incapacity  of  the  husband  to  be  the  head  of  the 
family  and  to  provide  them  with  a  home,  as  by  reason  of  an 
adjudication  of  permanent  insanity,  the  presumption  of  law 
that  the  wife  is  dependent  upon  the  husband  for  a  home  no 
longer  applies,  and  shj_is.at-liberty  to  select  her  own  domicil  as 
well  as  that  of  the  minor  children.  It  is  similar  to,  and  even 
stronger  than,  the  case  of  the  husband's  desertion.^  If  there 
has  been  no  legal  adjudication  of  insanity,  it  would  seem  that 
the  wife's  domicil  must  be  held  to  follow  that  of  her  husband, 
notwithstanding  mental  or  physical  ailments. 

It  has  been  said  that  if  the  husband  is  incapacitated  to  sup- 
port the  wife  by  reason  of  conviction  of  felony  (an  incapacity 
established  by  the  law)  his  domicil  will  cease  to  control  that  of 
the  wife.'  But  unless  the  confinement  is  permanent,  for  life, 
it  is  difficult  to  see  how  it  could  leave  the  wife  free  to  select  a 
domicil  of  her  own." 

Mere  physical  weakness  or  incapacity  on  the  part  of  the  hus- 
band will  in  no  event,  it  is  believed,  confer  upon  the  wife  the 
privilege  of  choosing  a  domicil  apart  from  his.  Indeed  such  a 
course  would  generally  be  a  plain  violation  of  the  duty  she  owes 
her  husband,  whom  she  has  taken  for  better  or  for  worse,  in 
sickness  as  well  as  in  health. 

*  Williams  v.  Williams,  130  N.  Y.  193,  197,  29  N.  E.  98.  See  Chapman  v. 
Chapman,  129  111.  386,  21  N.  E.  806. 

'  Watkins  v.  Watkins,  135  Mass.  83,  85-86. 

^  See  Whart.  Confl.  L.  §  44.  This  is  true  however  only  in  case  the  in- 
sanity is  of  a  permanent  character. 

»  Whart.  Confl.  L.  §  44  ;  McPherson  r.  Housel,  2  Beasley  (N.  J,),  35, 
18  jST.  J.  Eq.  35. 

»  See  Kelsey  v.  Green,  69  Conn.  291,  37  Atl.  679. 


§  50      DOMICIL  OP  WIFE  CONTEMPLATING  DIVOBCE.      101 

§  50.    Domicil   of  "Wife  contemplating  Divorce.  —  The  mu- 

nicipal  law  of  almost  all  States  requires  that  the  complainant  in 
a  divorce  suit  should  be  domiciled  in  the  ^ate  where"  tEe^stiit 
is  instituted!.     Hence  iFhecomes  Important  Tn  sucE  cases''^ 

It  is  now  settled  that  an  innnnent  wife  majr  fu'.qnjjrA  a  separate 
domicil  from  her  husband  for  purposes  of  divorce,  or  probably 
in  any  case  where  her  interests  are  antagonistic  to  his  and  are 
dependent  upon  the  locality  of  the  domicil,  provided  she  actually 
resides  there  and  actually  raises  the  question  in  a  judicial  pro- 
ceeding.^ 

Mr.  Jacobs  has  expressed  the  opinion  that  this  rule  should 
not  be  extended  beyond  giving  to  the  wife  the  right  to  sue  for 
divorce  in  the  State  where  she  and  her  husband  have  resided 
together."  But  it  is  now  well  settled  that  the  wife  may  go  to 
an  entirely  new  State,  and  having  become  domiciled  there  may 
sue  for  a  divorce.' 

This  rule  is  adopted  in  order  to  prevent  the  grave  injustice 
that  might  be  done  the  wife,  if  her  domicil  was  held  to  follow 
her  husband's,  otherwise  she  would  be  compelled  to  follow  him 
into  any  distant  State  he  might  select  as  his  domicil,  and  after 
expense  and  trouble  sue  for  her  divorce  in  the  forum  selected  by 
him,  perhaps  chosen  for  the  very  reason  that  its  laws  would 
deny  her  the  relief  she  might  obtain  at  home.*     And  if  she 

1  See  Jac.  Dora.  §§  223-226  ;  Cheever  v.  Wilson,  9  Wall.  108,  123-124 ; 
Hunt  V.  Hunt,  72  N.  Y.  217,  28  Am.  Rep.  129  ;  Hill  v.  Hill,  166  111.  54, 
46  N.  E.  751,  752  ;  Chapman  v.  Chapman,  129  111.  386,  21  N.  E.  806 ;  Dun- 
ham V.  Dunham,  162  111.  689,  35  L.  R.  A.  70,  77  ;  Arrington  v.  Arrington, 
102  N.  C.  491,  9  S.  E.  200  ;  Smith  v.  Smith,  43  La.  Ann.  1140,  10  So.  248, 
249  ;  Burtis  v.  Burtis,  161  Mass.  508,  510  ;  Blackinton  v.  Blackinton,  141 
Mass.  432,  435  ;  Harteau  v.  Harteau,  14  Pick.  (Mass.)  187,  25  Am.  Dec.  372  ; 
White  V.  White,  18  R.  I.  292,  27  Atl.  506,  507  ;  Van  Fossen  v.  State,  37  Ohio 
St.  317,  41  Am.  Rep.  507,  508  ;  Cook  v.  Cook,  56  Wis.  195,  43  Am.  Rep. 
706,  14  N.  W.  33,  35. 

2  Jac.  Dom.  §§  224,  224  a. 

8  See  cases  cited,  note  1,  supra. 

<  Jac.  Dom.  §  224  ;  Whart.  Confl.  L.  §  224  ;  Cheever  v.  Wilson,  9  Wall. 
108,  124;  Harteau  v.  Harteau,  14  Pick.<Mass.)  181,  25  Am.  Dec.  372;  Burtis 
V.  Burtis,  161  Mass.  508,  510;  Hunt  v.  Hunt,  72  N.  Y.  217,  24S,  28  Am. 
Rep.  129 ;  Jenness  v.  Jenness,  24  Ind.  355,  87  Am.  Dec  335,  337. 


102  wife's  domicil  —  husband  seeking  divorce.  §  61 

were  relegated  to  the  domicil  of  her  married  life,  the  State 
where  she  has  lived  with  her  hushand,  the  inconvenience  would 
still  he  great ;  she  would  be  compelled  to  sue  for  divorce  in  her 
former  home  before  she  could  remove  to  another  State,  or  else  to 
forego  altogether  her  right  to  divorce. 

This  rule  is  prescribed  in  order  to  afford  a  better  protection 
to  the  wife.  Its  adoption  ought  not  to  deprive  the  wife  (at 
least  from  the  standpoint  of  private  international  law)  of  the 
right  she  would  have  had  without  it  of  treating  her  husband's 
domicil  as  still  her  own,  if  she  should  prefer  that  course,  and 
sue  there.^ 

But  if  the  allegation  of  the  wife  is  not  that  the  marriage 
relation  should  be  dissolved  by  decree  of  the  court,  but  that 
it  is  absolutely  null  and  void,  and  she  accordingly  asks  for  a 
decree  of  nullity,  the  domicil  of  the  alleged  husband  will  not 
affect  hers,  for  that  would  be  to  suppose  the  existence  of  a  valid 
marriage,  the  very  point  in  dispute.' 

§  51.  Domicil  of  Wife  '^hose  Husband  applies  for  Di- 
vorce.—  If  the  husband,  in  contemplation  of  divorce,  should 
leave  the  wife  and  acquire  a  new  domicil  in  another  State  or 
country,  it  would  in  many  instances  result  in  great  injustice  to 
the  wife,  should  the  law  require  her  domicil  to  follow  his.  For 
she  would  then,  merely  by  construction  of  law,  contrary  to  the 
actual  fact,  be  subjected  to  the  laws  and  jurisdiction  of  her  hus- 
band's domicil,  chosen  by  him  under  circumstances  which  would 
lead  him  to  advance  his  own  interests  and  to  antagonize  hers. 
The  law  will  not  ordinarily  thus  disregard  the  actual  state  of 
facts  in  such  cases,  nor  content  itself  with  idle  presumptions 

'  See  Jac.  Dom.  §  224  ;  Greene  v.  Greene,  11  Pick.  (Mass.)  410.  But  see 
"Wood  V.  Wood,  54  Ark.  172,  15  S.  W.  459  ;  Cook  v.  Cook,  56  Wis.  195,  43 
Am.  Rep.  706,  14  N.  W.  33,  35.  In  Jenuess  v.  Jenness,  24  Ind.  355,  87  Am. 
Dec.  335,  337,  this  principle  is  disapproved  on  the  ground  that  it  gives  the 
wife  two  domicils.  It  is  manifest  that  this  is  not  so :  it  only  gives  her  a 
choice  between  two.  Her  domicil  remains  that  of  her  husband  until  she  sues 
for  divorce.  She  may  accept  the  general  presumption  of  law  which  operates 
upon  her  up  to  the  time  her  suit  is  instituted,  and  sue  where  her  husband  is 
domiciled;  or  she  may  accept  the  alternative  of  separating  her  domicil  from 
her  husband's,  suing  where  she  actually  resides. 

«  See  Whart.  Confl.  L.  §  224. 


§  52  DOMICIL  OF  DIVORCED   WIFE.  103 

which  the  husband's  conduct  shows  to  have  no  foundation  in 
fact.^  Hence  it  is  well  settled  that  the  wife,  as  defendant  in  a 
divorce  suitHSrought  by  her  husband  in  his  domicil,  is  fo  be 
considered  from  the  time  the  suit  is  instituted  as  domiciled  in 
fW  sfaffl  ^hftT?  Pflff  artTr°^^j  "  ''  I  ■■■"'"■  ■"'  j  iITfn^ti 
and  protection  she  actually  is.  The  acquisition  of  a  new 
domicil  b^  the  husband  for  purposes  of  dtvorce'^oe8"'noB  draw 
the^e|fe,mt0-fclifi,j»ftmQ;;jUrisdiction,  unless  she  in  fact  removes 
thitl^er  permanently.     Their  interests  are  antagonistic' 

But^a  wife  cannot  thus  obtain  a  separate  domicil  by  her  own 
wrong,  so  that  if  she  deserts  her  husband  he  may  sue  for  divorce 
in  any  State  where  he  is  domiciled,  and  she,  though  actually 
resident  elsewhere,  will  be  deemed  in  law  to  be  domiciled  with 
him,  thus  giving  the  court  jurisdiction  of  both  the  parties.* 

§  52.  Domicil  of  Divorced  Wife.  —  We  have  seen  that  the 
law  generally  assigns  the  wife  the  domicil  of  her  husband, 
because  they  are  one  person  in  law,  because  it  is  her  duty  to 
live  with  him,  and  because  in  fact  she  will  usually  do  so.  But 
when  the  parties  are  divorced,  these  reasons  cease  to  operate 
altogether  or  in  large  measure. 

Thus  in  a  case  of  a  divorce  a  mensa,  or  judicial  separation, 
the  law  itself,  through  the  courts,  has  decreed  that  the  parties 
shall  no  longer  be  considered  identical,  as  before,  and  that  they 
shall  thereafter  live  separate  and  apart.  All  the  foundations 
upon  which  rests  the  presumption  that  the  husband's  domicil  is 
likewise  the  wife's  are  thus  swept  away.  Indeed  the  very  oppo- 
site presumption  at  once  arises,  namely,  that  the  parties  have 
obeyed  the  decree  of  the  court  and  have  ceased  to  live  together.^ 

1  Watkins  v.  Watkins,  135  Mass.  83,  86. 

2  Story,  Confl.  L.  229  a,  note ;  Hunt  v.  Hunt,  72  N.  Y.  217,  243,  28  Am. 
Rep.  129  ;  Vischer  v.  Vischer,  12  Barb.  (N.  Y.)  640,  643 ;  Borden  v.  Fitch, 
15  Johns.  (N.  Y.)  121,  141,  8  Am.  Dec.  225  ;  Heath  v.  Heath,  42  La.  Ann. 
437,  7  So.  540 ;  Jenness  v.  Jenness,  24  Ind.  355,  87  Am.  Dec.  336-337. 

8  Whart.  Confl.  L.  §  227 ;  Loker  v.  Gerald,  157  Mass.  42,  31  N.  E.  709  ; 
Builen  V.  Shannon,  115  Mass.  438,  447-448  ;  Harteau  v.  Harteau,  14  Pick. 
(Mass.)  181,  25  Am.  Dec.  372  ;  Hood  v.  Hood,  11  Allen  (Mass.),  196,  199,  87 
Am.  Dec.  709 ;  Hunt  v.  Hunt,  72  N.  Y.  217,  243,  38  Am.  Rep.  129  ;  Heath 
V.  Heath,  42  La.  Ann.  437,  7  So.  540. 

'^  So  strong  is  this  latter  presumption  that  a  child  bom  more  than  ten 


104  DOMICIL   OF   DIVORCED   WIFE.  §  62 

The  fiction  that  the  wife  has  her  home  with  the  husband 
being  thus  destroyed  by  the  act  of  the  law  itself,  there  would 
seem  to  be  no  reason  why  the  wife  may  not  actually  acquire  a 
separate  domicil,  even  though  the  dissolution  of  the  marriage 
ties  be  not  absolute.     And  such  is  now  the  general  opinion.* 

In  case  of  a  divorce  a  vinculo,  the  parties  have  in  general 
all  the  rights  and  capacities  of  unmarried  persons,  amongst 
other  things  the  right  to  change  their  domicils  at  will.*  The 
fact  that  the  woman  is  the  offending  party,  and  that  the  court 
is  authorized  to  decree  and  does  decree  that  she  shall  not  marry 
again,  would  not  affect  her  right  in  this  particular;  for  such  a 
penal  disability  cannot  follow  her  into  other  States,  nor  does  it 
prevent  her  status  from  being  in  general  that  of  an  unmarried 
woman.* 

But  if  the  divorce  is  invalid,  as  for  example  if  it  is  granted 
by  a  court  without  jurisdiction,  it  is  of  no  legal  effect  in  free- 
ing the  parties  from  their  marital  obligations  and  disabilities. 
They  are  still  bound  by  the  rules  regulating  the  relations  of 
married  persons,  and  the  wife's  domicil  is  still  in  law  that  of 
her  husband's,  though  she  actually  resides  elsewhere  or  marries 
another  man.' 

The  divorce,  even  though  valid,  does  not  necessarily  ipso  facto 
alter  the  wife's  domicil.  She  retains  the  domicil  she  had  imme- 
diately before  the  coverture  was  determined  until  she  acquires 
another  for  herself;  and  neither  her  domicil  of  origin,  nor  her 
domicil  before  marriage,  will  play  any  part  unless  she  actually 
lives  there.' 

months  after  the  decree  of  separation  is  prima  facie  presumed  illegitimate. 
See  1  Minor's  Insts.  (4th  ed.)  297  ;  2  Bright's  Husb.  &  Wife,  262,  Bac.  Abr. 
Marr.  &  Div.  (F.). 

2  Jac.  Dom.  §§  217,  219,  220,  221  ;  Dolphin  v.  Robins,  7  H.  L.  Cas.  390  ; 
Barber  v.  Barber,  21  How.  582  ;  Hunt  v.  Hunt,  72  N.  Y.  217,  243,  28  Am, 
Rep.  129  ;  Vischer  v.  Vischer,  12  Barb.  (N.  Y.)  640,  643 ;  Borden  v.  Fitch, 
15  Johns.  (N.  Y.)  121,  141,  8  Am.  Dec.  225. 

«  Jac.  Dom.  §  217;  Whart.  Confl.  L.  §  46  ;  Dicey,  Confl.  L.  130  ;  War- 
render  V.  Warrender,  2  CI.  &  F.  488,  525,  627. 

♦  Post,  §  74. 

*  See  Dicey,  Confl.  L.  127-128  ;  Dolphin  r.  Robins,  7  H.  L.  Cas.  390. 

•  Jac.  Dom.  §  222  ;  Dicey,  Confl.  L.  130.     This  principle  has  already  been 


§  54  CONSTRUCTIVE  DOMICIL  OF   IDIOTS.  105 

§  53.  Domicil  of  Wife,  where  the  Marriage  is  Voidable  or 
Void.  —  If  the  marriage  is  merely  voidable  by  decree  of  court, 
and  no  decree  has  been  obtained,  there  would  seem  to  be  no 
doubt  that  the  wife's  domicil  would  continue  in  general  to  be 
governed  by  that  of  the  husband.^ 

If  the  marriage  is  absolutely  void,  when  tested  by  the  law 
properly  applicable  to  determine  the  question,  as  by  reason  of 
the  insanity  of  one  of  the  parties  (which  in  many  States  renders 
the  marriage  absolutely  void)  or  because  one  of  the  parties  has  a 
consort  still  living  and  undivorced,  it  would  seem  clear  that 
since  there  has  never  been  a  marriage,  the  woman's  domicil 
would  be  identical  with  her  supposed  husband's  only  so  far  as, 
by  her  actual  residence  there  with  him  animo  manendi,  she 
makes  it  so.  The  doubt,  if  there  be  any,  is  not  whether  she 
may  be  assigned  the  domicil  of  her  supposed  husband  without 
actual  residence  there,  but  whether,  even  though  she  does  actu- 
ally reside  there  with  him,  she  can  be  said  to  have  acquired  a 
domicil  of  choice.^ 

§  54.  Constructive  Domicil  of  Idiots.  —  Idiots  are  those 
who  from  birth  are  so  deficient  in  intellect  as  to  be  totally  un- 
able to  manage  their  own  affairs  or  to  live  without  the  protecting 

applied  to  the  case  of  an  infant  wife  who  has  been  widowed  or  divorced. 
Ante,  §  45.  It  should  be  added  that  the  domicil  of  a  toidow  is  governed  by 
the  same  rules  that  govern  that  of  a  divorced  woman.  Story,  Confl.  L.  §  46  ; 
Dicey,  Confl.  L.  130  ;  Jac.  Dom.  §  222  ;  Warrender  v.  Warrender,  2  CI.  &  F. 
488,  525,  527. 

1  Warrender  r.  Warrender,  2  CI.  &  F.  488,  527,  528.  But  after  a  decree 
avoiding  the  marriage  ab  initio  for  a  cause  existing  at  the  time  of  the  mar- 
riage, it  would  seem  that  the  wife  would  be  deprived  of  her  right  to  the  hus- 
band's domicil  from  the  beginning,  save  in  so  far  as  it  is  actually  her  own. 

2  Jac.  Dom.  §  212  ;  Concord  v.  Rumney,  45  N.  H.  423.  See  Middle- 
borough  V.  Rochester,  12  Mass.  363.  In  both  of  these  cases  (which  were 
settlement  cases)  the  marriage  was  void  for  insanity.  In  the  first  it  was  the 
wife  who  was  insane  ;  but  the  court  held  that  if,  in  residing  with  her  husband, 
she  had  sufficient  understanding  to  choose  her  place  of  abode,  her  municipal 
domicil  must  be  considered  as  located  at  the  place  where  she  thus  dwelt.  In 
the  latter  case  it  was  the  husband  who  was  insane,  and  it  is  not  clear  that  the 
wife  actually  resided  at  his  domicil ;  it  appears  from  the  report  of  the  case 
that  she  continued  to  reside  where  she  was  living  at  the  time  of  the  marriage. 
The  decision  was  that  her  municipal  domicil  remained  unchanged. 


106  CON8TRUCTIVE  DOMICIL  OF  LUNATICS.  §  55 

care  of  some  guardian.  They  are  incapable,  eyen  after  they 
become  adults,  of  forming  such  a  definite  intention  and  purpose 
as  is  necessary  to  constitute  a  legal  domicil  of  choice.  They 
must  always  remain  dependent  for  a  home,  as  infants  are,  upon 
those  having  the  legal  custody  and  control  of  their  persons 
They  continue  infants  perpetually.  The  rules  of  law,  there- 
fore, which  determine  an  infant's  domicil  are  extended  to  adults 
also  who  have  never  acquired  sufficient  intelligence  to  select  and 
support  a  home  of  their  own.^ 

§55.  Constrnctive  Domicil  of  Lunatics. — If  an  infant 
should  become  insane  during  his  minority  and  remain  in  that 
state  continuously,  the  incapacity  of  minority  never  having  been 
followed  by  adult  capacity  to  select  a  home  of  his  own,  his 
domicil  must  be  determined  by  the  same  rules  that  control  the 
domicil  of  an  idiot  or  infant.^  But  in  those  cases  where  the 
lunacy  has  supervened  after  the  party  has  reached  maturity, 
the  domicil  must  be  determined  upon  different  principles. 

One  point  must  be  observed  at  the  outset,  and  should  be 
borne  in  mind.  The  Supreme  Court  of  New  Hampshire  *  has 
thus  expressed  it:  "Insanity  may  exist  in  various  degrees, 
from  the  slight  attacks  which  are  hardly  distinguishable  from 
eccentricity  to  the  most  raving  and  uncontrollable  madness.  It 
may  be  general,  seeming  to  affect  all  the  operations  of  the  mind 
upon  all  subjects,  or  it  may  exist  only  in  reference  to  a  small 
number  of  subjects,  or  a  single  subject:  the  mind  in  such  cases 
of  partial  insanity  seeming  to  be  in  its  habitual  and  natural 
condition  as  to  all  subjects  and  matters  which  do  not  come 
within  the  scope  of  the  partial  disease.  In  no  case  at  the 
present  day  is  it  a  mere  question  whether  the  party  is  insane. 
The  point  to  be  established  is,  whether  the  party  is  so  insane 

1  Jac.  Dom.  §§  264-269  ;  Whart.  Confl.  L.  §§  52,  53  ;  Holyoke  v.  Haskins, 
5  Pick.  (Mass.)  20,  25-26,  16  Am.  Dec  372  ;  Upton  v.  Northbridge,  15  Mass. 
237  ;  Overseers  of  Alexandria  v.  Bethlehem,  1  Harr.  (N.  J.)  119,  31  Am. 
Dec.  229. 

1  Jac.  Dom.  §  268  ;  Whart.  Confl.  L.  §  53  ;  Sharpe  v.  Crispin,  L.  R.  1  P.  & 
D.  611,  618  ;  Washington  v.  Beaver,  3  W.  &  S.  (Penn.)  548,  549. 

^  Concord  v.  Rumney,  45  N.  H.  423.  See  Culver's  Appeal,  48  Conn.  304  ; 
Holyoke  v.  Haskins,  5  Pick.  (Mass.)  20,  26,  16  Am.  Dec.  372.  All  these  are 
eases  of  municipal  domicil. 


§  55  CONSTRUCTIVE   DOMICIL  OF  LUNATICS.  107 

as  to  be  incapable  of  doing  the  particular  act  with  understand- 
ing and  reason.  This  would  be  the  essential  question  now, 
where  marriage  is  alleged  to  be  void  by  reason  of  insanity,  and 
the  same  test  would  be  applied  in  determining  the  question  of 
capacity  to  change  the  domicil:  Had  the  party  at  the  time 
sufficient  reason  and  understanding  to  choose  her  place  of 
residence?" 

There  can  be  no  doubt  that  a  stricter  test  of  insanity  should 
be  required  to  deprive  one  of  the  capacity  to  select  his  own 
home  than  is  required  to  avoid  a  contract  or  a  will.' 

The  determination  of  a  lunatic's  domicil  would  seem  to 
hinge  upon  the  question  whether  there  has  been  an  adjudica- 
tion of  lunacy,  or  rather  whether  his  person  has  been  actually 
committed  to  the  custody  and  control  of  a  legal  guardian  or 
committee.* 

Indeed,  so  far  as  his  national  or  quasi-national  domicil  is 
concerned,  a  question  has  been  made  whether  even  an  adjudi- 
cation and  commission  of  lunacy  would  be  given  such  force  in 
other  States  as  to  affect  the  lunatic's  right,  should  he  go  to 
another  State,  to  acquire  a  domicil  there.'  It  is  submitted  that 
the  gist  of  the  inquiry  in  such  cases  is  not  whether  the  adjudi- 
cation of  lunacy  shall  be  given  exterritorial  effect  ex  propria 
vigore,  but  whether  as  a  matter  of  evidence,  the  action  of  the 
court  of  one  State  should  not  be  taken  as  very  strong  evidence, 
if  not  conclusive,  of  the  proposition  that,  at  the  time  of  such 
decree,  the  party  was  really  of  such  unsound  mind  as  to  require 
his  person  to  be  controlled.* 

But  while  this  last  principle  is  believed  to  be  sound,  it  is  ap- 
plicable only  to  the  party's  state  of  mind  at  the  time  of  the 

»  See  Harral  v.  Harral,  39  N.  J.  Eq.  379,  51  Am.  Rep.  17,  21 ;  Concord  v. 
Rumney,  45  N.  H.  423  ;  Rodgers  v.  Rodgers,  56  Kan.  483,  43  Pac.  779,  781 ; 
Talbot  r.  Chamberlain,  149  Mass.  57,  59,  20  N.  E.  305,  3  L.  R.  A.  254  ; 
Mowrj'  V.  Latham,  17  R.  I.  480,  23  Atl.  13. 

♦  See  Talbot  v.  Chamberlain,  149  Mass.  57,  58,  20  K  E.  305,  3  L.  R.  A. 
254 ;  Mowry  v.  Latham,  17  R.  I.  480,  23  Atl.  13. 

6  See  Talbot  v.  Chamberlain,  149  Mass.  57,  59,  20  K  E.  305,  3  L.  R.  A. 
254. 

•  See  Rodgers  v.  Rodgers,  56  Kan.  483,  43  Pac.  779,  781 ;  Mowry  v.  Latham, 
17  R.  L  480,  23  Atl.  13. 


108  CONSTRUCTIVE   DOMICIL  OF   LUNATICS.  §  55 

decree.  The  continuance  of  that  state  of  mind  may  be  rebutted. 
It  is  not  indispensable  that  there  should  be  an  adjudication  of 
restoration  to  sanity  by  the  same  or  any  other  court.' 

The  true  principle  therefore  would  seem  to  be  that  a  lunatic, 
whose  person  has  been  placed  under  the  control  of  a  guardian 
or  committee,  is  prima  facie  incompetent  to  establish  a  domicil 
iu  another  State,  but,  upon  satisfactory  proof  of  mental  capacity 
supervening,  such  domicil  may  be  recognized.  In  any  event, 
the  mere  fact  that  the  control  of  the  lunatic's  property  has  been 
committed  to  a  guardian  or  committee  will  not  suffice  to  prevent 
him  from  choosing  even  a  municipal  domicil,  much  less  a  na- 
tional or  quasi-national  one.^ 

A  fortiori  would  the  party  be  capable  of  choosing  his  own 
domicil,  if  there  is  no  adjudication  or  commission  of  lunacy  at 
all.  Thus,  one  suffering  from  habitual  intemperance,  melan- 
cholia, monomania,  or  very  pronounced  eccentricities,  may  ordi- 
narily be  fully  competent  to  determine  where  he  should  reside.® 
Nor  would  an  adjudication  of  lunacy  in  a  collateral  proceeding 
to  set  aside  a  contract  have  the  effect  of  depriving  the  party  of 
the  right  to  choose  his  own  domicil,  for  the  tests  in  the  two 
cases  are  different,  and  no  control  is  thereby  assumed  of  the 
lunatic's  person. 

If  the  insanity  is  so  marked  or  so  violent  as  to  require  the 
duress  of  an  asylum,  there  can  then  of  course  be  no  question  of 
any  selection  of  domicil  by  the  lunatic. 

The  question  remains,  what  is  the  locality  of  the  lunatic's 
domicil  when  he  is  himself  too  insane  to  choose  one  ?  Shall 
the  guardian  or  committee  have  power  to  change  it,  or  must  it 
remain  unalterably  where  it  was  when  the  disability  was  first 
incurred  ? 

The  case  is  closely  analogous  to  that  of  the  guardian's  power 
to  change  an  infant  ward's  domicil,  already  discussed.^"     As  to 

T  Rodgers  v.  Rodgers,  56  Kan.  483,  43  Pac.  779,  781. 

8  Mowry  v.  Latham,  17  R.  L  480,  23  Atl.  13 ;  Talbot  v.  Chamberlain,  149 
Mass.  57,  20  N.  E.  305,  3  L.  R.  A.  254. 

•  Concord  v.  Rumney,  45  N.  H.  423.  See  Harral  ».  Harral,  39  N.  J.  Ect 
379,  51  Am.  Rep.  17. 

w  Ante,  §  41. 


§  56  DOMICIL  OP   CHOICE.  109 

the  lunatic's  municipal  domicil,  it  seems  that  the  guardian  has 
the  power,  but  not  so  with  respect  to  his  national  or  quasi- 
national  domicil.^^  His  latter  domicil  will  remain  unchanged, 
regardless  of  the  place  of  his  actual  residence.  He  will  retain 
the  domicil  he  possessed  before  he  became  insane.  uponirfTe^in- 
ciple  that  a  donircil  once  acquired  is  retained  until  a,nother  is 
gainedT'^''^ 

§  56.  HI.  Domicil  of  Choice  —  Three  Essential  Elements. 
—  The  domicil  of  origin  assigned  to  an  infant  immediate!}^ 
upon  his  birth,  upon  principles  already  considered,  is  retained 
by  him,  even  after  maturity,  until  another  has  been  acquired.^ 
Unless  one  is  acquired  by  operation  of  law  in  the  meanwhile, 
an  infant  will  always  arrive  at  the  age  of  majority  with  his  orig- 
inal domicil  still  clinging  to  him.*  From  that  time,  if  free 
from  disabilities,  he  may  choose  a  new  home  for  himself.  But 
it  does  not  follow  that  he  will  do  so.  On  the  contrary,  he  will 
usually  retain  his  original  domicil  all  his  life. 

The  burden  of  proof  is  on  him  who  alleges  a  change  of  dom- 
icil, or  in  other  words  there  is  a  prima  facie  presumption  in 
favor  of  the  retention  of  a  domicil  once  acquired.  This  presump- 
tion applies  not  only  to  the  original  domicil  but  to  domicils  of 
every  sort.' 

A  domicil  of  choice,  as  the  name  implies,  means  simply  that 
a  party  is  legally  competent  to  exercise  his  own  choice  with  re- 
spect to  his  permanent  home,  and  has  exercised  it. 

"  Talbot  V.  Chamberlain,  149  Mass.  57,  59,  3  L.  R.  A.  254  ;  Culver's  Ap- 
peal,  48  Conn.  165  ;  Mowry  v.  Latham,  17  R.  I.  480,  23  Atl.  13;  Anderson 
V.  Anderson,  42  Vt.  350,  1  Am.  Rep.  334 ;  Rodgers  v.  Rodgers,  56  Kan.  483, 
43  Pac.  779,  781. 

1*  Bempde  v.  Johnstone,  3  Ves.  Jr.  198,  201  ;  Harral  v.  Harral,  39  N.J. 
Eq.  379,  51  Am.  Rep.  17,  21  ;  Rodgers  v.  Rodgers,  56  Kan.  483,  43  Pac.  779, 
781  ;  Mowry  r.  Latham,  17  R.  I.  480,  23  Atl.  13. 

1  White  V.  Tennant,  31  W.  Va.  790,  8  S.  E.  596,  597;  Steer's  Succession, 
47  La.  Ann.  1551,  18  So.  503,  505  ;  Firth  v.  Firth,  50  N,  J.  Eq.  137,  24  Atl. 
916,  917. 

2  Price  V.  Price,  156  Penn.  St.  617,  27  Atl.  291 ;  Hiestand  v.  Kuns, 
8  Blackf.  (Ind.)  345,  46  Am.  Dec.  481. 

8  Desmare  v.  United  States,  93  U.  S.  605 ;  Mitchell  v.  United  States,  21 
Wall.  350  ;  Dupuy  v.  Wurtz,  53  N.  Y.  556  ;  Allgood  v.  Williams,  92  Ala.  551, 
8  So.  722;  Price  v.  Price,  156  Penn.  St.  617,  27  Atl.  291. 


110  PARTY   FBEE   TO   CHOOSE   DOMICIL.  §  57 

There  are  three  elements  which  are  essential  to  the  acquisi- 
tion of  a  domicil  of  choice:  (1)  Freedom  of  choice,  without 
which  it  would  he  idle  to  speak  of  a  domicil  of  choice  /  (2)  Ac- 
tual presence  in  the  locality  chosen ;  (3)  Intention  to  remain 
permanently,  without  which  there  would  be  no  "  permanent 
home,"  as  the  definition  of  domicil  demands. 

Curiously  enough  however,  although  all  these  attributes  are 
essential  to  the  acquisition  of  a  domicil  of  choice,  the  domicil 
when  once  acquired  may  continue  though  all  three  or  any  of 
them  be  absent.  Thus,  in  order  to  acquire  a  domicil  of  choice, 
one  must  of  his  own  free  will  select  it,  he  must  actually  be  pres- 
ent there,  and  such  presence  must  be  coupled  with  the  intention 
to  remain  there  permanently.  But  such  domicil  having  been 
once  acquired  thus,  will  continue  until  another  is  gained, 
though  the  party  be  kept  there  against  his  will,  as  by  im- 
prisonment, or  though,  while  remaining  in  the  State,  he  changes 
his  mind  about  residing  there  permanently,  or  even  though  he 
leaves  the  State  altogether  (no  new  domicil  being  acquired). 

§  57.  Party  must  be  free  to  choose  Domicil.  —  The  first 
essential  of  a  domicil  of  choice  is  that  the  party  should  be 
legally  and  actually  free  to  choose  his  own  place  of  abode.  If 
not,  no  place  of  residence  can  be  said  to  be  his  domicil  of  choice. 
Besides  the  cases  of  legal  disability  when  a  constructive  domicil 
is  assigned  by  the  law,  such  as  infants,  married  women,  luna- 
tics, etc.,  there  sometimes  occur  cases  in  which,  though  the 
party  may  be  under  no  legal  disability,  he  is  in  fact  deprived  of 
the  freedom  of  volition  necessary  to  the  act  of  choosing  his  dom- 
icil. He  does  not  choose  to  be  where  he  is;  he  resides  there 
permanently  because  he  cannot  help  himself.  If  he  could,  he 
would  live  elsewhere.  Under  circumstances  such  as  these,  a 
question  may  arise  as  to  the  place  of  his  domicil. 

Instances  in  which  these  circumstances  are  apt  to  appear  are 
cases  of  persons  imprisoned,  exiles,  fugitives,  and  invalids.  In 
all  of  these  cases  there  is  some  degree  of  coercion.  They  are 
under  the  duress  of  physical  confinement,  the  duress  of  political 
power,  or  the  duress  of  their  own  fears. 

The  real  question  in  these  cases  is  not  what  motive  has  led 
the  party  to  make  a  choice,  but  whether  he  has  actually  chosen 


§  57  PAETY  FREE  TO    CHOOSE   DOMICIL.  Ill 

to  reside  permanently  at  the  given  place.  If  he  has  so  chosen, 
the  motive  which  induced  him  to  do  so  is  immaterial.  It  may 
even  be  immoral  or  illegal.^ 

In  the  case  of  a  person  imprisoned,  it  is  quite  obvious  that  as 
a  general  rule  his  confinement  cannot  be  considered  as  giving 
him  a  domicil  of  choice  in  the  place  of  his  confinement,  if  he 
had  it  not  before.  He  must  be  held  to  retain  the  domicil  pre- 
viously possessed  by  him,'  unless  in  fact  he  becomes  so  enam- 
ored of  his  prison-house  as  to  determine  to  remain  permanently 
in  that  locality.*  The  application  of  this  latter  principle  is  ap- 
parent in  the  case  of  one  imprisoned  for  a  term  of  years  only, 
even  though  he  should  die  while  in  confinement.  And  it  is  be- 
lieved the  same  general  rule  will  apply  where  he  is  imprisoned 
for  life.  But  there  should  be  some  positive  evidence  that  he  has 
voluntarily  made  up  his  mind  to  live  permanently  in  the  place 
of  his  confinement.  Mere  resignation  to  the  inevitable,  without 
the  actual  mental  operation  incident  to  the  formation  of  inten- 
tion, is  not  an  exercise  of  choice,  and  therefore  will  not  suffice.* 

With  respect  to  exiles,  a  distinction  is  to  be  made  between 
such  as  are  compelled  to  permanently  abandon  their  country  by 
the  command  of  a  superior  political  power,  and  those  who,  be- 
cause of  persecutions  and  restraints  upon  liberty,  abandon  it 
without  compulsion.  In  the  former  case  the  presumption  is 
against  a  change  of  domicil,  it  being  never  presumed  that  the 
exile  has  abandoned  all  hope  of  return.  This  must  be  shown  by 
affirmative  evidence.^ 

1  Young  V.  Pollak,  86  Ala.  439,  5  So.  279,  282  ;  H^eman  v.  Fox,  31  Barb. 
(N,  Y.)  475,  483  ;  Fosdick  v.  Fosdick,  15  R.  I.  130,  23  Atl.  140  ;  State  v. 
Ross,  76  N.  C.  242,  22  Am.  Rep.  678,  679 ;  Colburn  v.  Colbum,  70  Mich.  647, 
38  N.  W.  607.  See  Reed  v.  Reed,  52  Mich.  117,  17  N.  W.  720,  50  Am.  Rep. 
247,  251;  Ennis  v.  Smith,  14  How.  400,  401;  Guarantee  Co.  v.  Bank,  95  Va. 
480,  28  S.  E.  909,  3  Va.  Law  Reg.  873.  As  was  said  in  Chitty  v.  Chitty,  118 
N.  C.  647,  32  L.  R.  A.  394,  24  S.  E.  517,  "the  question  is  one  of  law,  not  of 
morals,  and  we  could  not  inquire  into  the  latter. " 

2  Jac.  Dom.  §  272. 

«  Jac.  Dom.  §§  272,  273;  Guarantee  Co.  v.  Bank,  95  Va.  480,  28  S.  E.  909, 
3  Va.  Law  Reg.  873. 

*  Jac.  Dom.  §  274.     But  see  Whart.  Confl.  L.  §  54. 

6  Jac.  Dom.  §§  277  et  seq. ;  Ennis  v.  Smith,  14  How.  400 ;  White  v.  Brown, 
1  WalL  Jr.  217,  265 ;  DeBonneval  v.  DeBonneval,  1  Curteis,  856. 


112        INVALIDS  COMPELLED   TO   RESIDE  ABBOAD.       §  58 

In  the  case  of  fugitives  from  justice,  as  in  the  case  of  exiles 
and  refugees,  there  is  no  presumption  indulged  of  the  abandon- 
ment of  their  former  homes.  An  intention  to  reside  permanently 
in  their  haven  of  refuge  must  be  affirmatively  shown.* 

§  58.  Same  —  Invalids  compelled  to  reside  Abroad.  —  The 
determination  of  the  domicil  of  an  invalid,  compelled  by  con- 
siderations of  health  to  leave  his  home  and  reside  elsewhere,  is 
often  a  matter  of  great  perplexity.  The  principle  here  is  the 
same  as  in  other  cases;  the  difficulty  lies  in  applying  it,  in 
ascertaining  the  invalid's  intention.  If  his  intent  is  to  live 
permanently  in  his  new  abode,  the  fact  that  he  is  impelled  to 
make  the  choice  by  reason  of  fears  for  his  life  is  immaterial. 
The  motive  for  his  decision  will  not  be  inquired  into.  But  he 
must  intend  to  live  at  the  place  to  which  he  goes  in  search  of 
health.     An  intention  merely  to  die  there  is  not  enough. 

Mr.  Dicey,  with  his  usual  accuracy  of  thought,  has  made  this 
matter  so  plain  that  it  will  only  be  necessary  to  borrow  from 
him.  After  noting  various  confused  and  confusing  dicta  on  the 
subject,  he  says :  ^ 

**The  apparent  inconsistency  between  these  doctrines  may  be 
removed  or  explained,  if  we  dismiss  all  reference  to  motive,  to 
external  necessity,  and  so  forth,  avoid  the  use  of  the  misleading 
terms  'voluntary'  and  'involuntary,'  and,  recurring  to  the  prin- 
ciple that  residence  combined  with  the  purpose  of  permanent  or 
indefinite  residence  constitutes  domicil,  apply  it  to  the  different 
cases  or  circumstances  under  which  a  domiciled  Englishman 
may  take  up  a  foreign  residence  for  the  sake  of  his  health." 

He  then  proceeds  to  give  three  cases.  His  first  case  is  that 
of  an  Englishman  (D)  who  goes  to  France  for  relief  from  sick- 
ness, with  the  firm  intention  of  residing  there  six  months  and 
no  longer.  He  proceeds :  "  This  case  presents  no  difficulty  what- 
ever. D  does  not  acquire  a  French  domicil  any  more  than 
he  does  if  he  goes  to  France  for  six  months  on  business  or 
for  pleasure.     He  has  not  the  animus  manendi,  but   the  quite 

«  Young  V.  PoUak,  85  Ala.  439,  5  So.  279,  282;  Chitty  v.  Chitty,  118 
N.  C.  647,  24  S.  E.  517,  32  L.  R.  A.  394 ;  Reed  v.  Reed,  52  Mich.  117,  60 
Am.  Rep.  247,  248,  17  N.  W.  720. 

1  Dicey,  Confl.  L.  144  et  sea. 


§  58       INVALIDS   COMPELLED   TO  RESIDE  ABROAD.        113 

different  intention  of  staying  for  a  determinate  time  or  definite 
purpose." 

His  next  case:  "D,  finding  that  his  health  suffers  from  the 
English  climate,  goes  to  France  and  settles  there,  that  is,  he 
intends  to  reside  there  permanently  or  indefinitely.  D  in  this 
case  acquires  a  French  domicil.  Here  again  there  is  no  devia- 
tion from  general  principle.  D  acquires  a  French  domicil  be- 
cause he  resides  in  France  with  the  animus  manendi."  '^ 

His  third  case:  "D  goes  to  France  in  a  dying  state,  in 
order  to  alleviate  his  sufferings,  veithout  any  expectation  of 
returning  to  England. 

"  This  is  the  case  which  has  suggested  the  doctrine  that  a 
change  of  residence  for  the  sake  of  health  does  not  involve  a 
change  of  domicil.  The  doctrine  itself,  as  applied  to  this  case, 
conforms  to  common  sense.  It  would  be  absurd  to  say  that  D, 
who  goes  to  Pau  to  spend  there  in  peace  the  few  remaining 
months  of  his  life,  acquires  a  French  domicil.  But  the  doctrine 
in  question,  as  applied  to  this  case,  is  in  conformity  not  only 
with  common  sense,  but  with  the  general  theory  of  the  law  of 
domicil.  D  does  not  acquire  a  domicil  in  France  because  he 
does  not  go  to  France  with  the  intention  of  permanent  or  indefi- 
nite residence  in  the  sense  in  which  these  words  are  applied  to 
a  person  settling  in  another  country,  but  goes  there  for  the 
definite  and  determinate  purpose  of  passing  in  France  the  few 
remaining  months  of  his  life.  The  third  case,  now  under  con- 
sideration, is  in  its  essential  features  like  the  first,  and  not  like 
the  second,  of  the  cases  already  examined.  If  D  knew  for  cer- 
tain that  he  would  die  precisely  at  the  end  of  six  months  from 
the  day  he  left  England,  it  would  be  apparent  that  the  first  and 
third  case  were  identical.  That  the  definite  period  for  which 
he  intends  to  reside  is  limited,  not  by  a  fixed  day,  or  by  the 
conclusion  of  a  definite  piece  of  business,  but  by  the  expected 
termination  of  his  life,  can  make  no  difference  in  the  character 
of  the  residence.  In  neither  the  first  nor  the  third  case  is  the 
residence  combined  with  the  proper  animtis  manendi.  .  .  .  The 

«  Hoskins  r.  Matthews,  8  DeG.  M.  &  G.  13,  25  L.  J.  (Ch.)  «89,  S5  Eng.  L. 
&  Eq.  532;  Hegeman  r.  Fox,  31  Barb.  (N.  Y.)  475. 


114  ELEMENTS   OP  DOMICIL  OP   CHOICE.  §  69 

dicta  of  the  authorities  who  lay  down  that  a  residence  adopted 
for  the  sake  of  health  does  not  involve  a  change  of  domicil  are 
obviously  delivered  by  persons  who  had  before  their  minds  the 
third,  not  the  second,  of  our  supposed  cases.  These  dicta,  again, 
embody  what,  in  reference  to  such  a  case,  is  a  perfectly  sound 
conclusion.  Their  only  defect  is  that  they  are  expressed  in 
terms  which  are  too  wide,  and  which  therefore  cover  circum- 
stances probably  not  within  the  contemplation  of  the  authorities 
by  whom  they  were  delivered;  and  further,  that,  while  embody- 
ing a  sound  conclusion,  they  introduce  an  unnecessary  and  mis- 
guiding reference  to  the  motives  which  may  lead  to  the  adoption 
of  a  foreign  domicil."  • 

§  59.  Farther  Elements  of  Domicil  of  Choice  —  Actual 
Presence  and  Animus  Manendi.  —  Supposing  that  nothing  ap- 
pears in  the  circumstances  of  a  particular  case  to  show  a  want 
of  freedom  of  choice,  two  elements  must  concur  to  establish  a 
domicil  of  choice,  namely,  actual  presence  in  the  country,  and  the 
intention  to  remain  there  permanently  or  for  an  indefinite  time 
at  least  (animus  manendi).  Indeed,  the  first  essential  referred 
to  in  the  preceding  sections,  freedom  of  choice,  is  a  necessary 
implication  from  the  requirement  of  an  intention  to  reside,  for 
there  can  usually  be  no  real  or  active  intention  where  there  is 
no  freedom  of  choice.  It  has  been  treated  separately  however 
for  the  sake  of  clearness.  In  this  aspect  it  may  be  truly  said 
that  wherever  the  two  elements  of  presence  and  intention  com- 
bine, a  domicil  of  choice  is  created,  and  all  former  domicils  are 
ipso  facto  abandoned.^ 

It  must  be  observed  that  neither  presence  alone,'  nor  inten- 
tion alone,  will  suflBce  to  create  a  domicil  of  choice!     Both  mlist 

»  See  Dicey,  Confl.  L.  145-146  ;  Jac.  Dom.  §§  287-296  ;  Johnstone  v. 
Beattie,  10  CI.  &  F.  42,  138 ;  Moorehouse  v.  Lord,  10  H.  L.  Cas.  272,  292  ; 
Anderson  v.  Laneuville,  9  Moore,  P.  C.  325  ;  Hoskins  v.  Matthews,  8  DeG. 
M.  &  G.  13,  28,  25  L.  J.  (Ch.)  689,  35  Eng.  L.  &  Eq.  532  ;  Dupuy  v.  Wurtz, 
53  N.  Y.  556 ;  Hegeman  v.  Fox,  31  Barb.  (N.  Y.)  475 ;  Isham  v.  Gibbons, 
1  Bradf.  (N.  Y.)  69;  Mayo  v.  Equitable  Assurance  Society,  71  Miss.  590,  15 
So.  791 ;  Still  ».  Woodville,  38  Miss.  646.  See  Udny  v.  Udny,  L.  R.  1  Sc. 
App.  441. 

1  Dicey,  Confl.  L.  104  ;  Story,  Confl.  L.  §  46  ;  Jac.  Dom.  §|  125,  126. 

*  For  a  qualification  of  this  statement,  see  post,  §  64. 


§  60  ACTUAL  PRESENCE.  115 

coqcur,  and  at  the  very  moment  they  do  concur  the  domicil  is 
createdT  ^  it  if^ometimes  expressed,  the  factum,  (presence) 
and  the  animus  (intention)  must  unite.'  And  thereafter  no 
change  of  locality  alone  (there  being  no  change  of  intent)  or 
vice  versa,  no  change  of  intention  (there  being  no  change  of 
locality),  will  effect  an  alteration  of  the  domicil  of  choice,  which 
remains  where  it  was,  until  the  factum  and  the  animus  again 
unite.* 

These  two  essential  elements  of  domicil  must  now  be  ex- 
amined a  little  more  fully. 

§  60.  Actued  Presence.  —  It  is  usually  said  that  the  elements 
necessary  to  the  creation  of  a  domicil  of  choice  are  residence  and 
the  animus  manendi.  The  term  "residence,"  as  here  used, 
means  simply  the  actual  bodily  presence  of  the  party,  if  that 
presence  is  coupled  with  the  intention  to  remain  permanently. 
It  but  tends  to  confusion  to  designate  this  presence  as  a  "resi- 
dence," though  in  fact  and  in  law  it  is  a  residence  if  it  is 
coupled  with  the  intention  to  remain. 

The  possible  confusion  incident  to  the  use  of  the  term  "resi- 
dence "  in  this  connection  is  well  illustrated  by  the  state  of 
facts  in  White  v.  Tennant.^  In  that  case  the  party  abandoned 
his  residence  in  one  State,  with  no  intention  of  resuming  it,  and 

•  Kinggold  V.  Barley,  5  Md.  186,  59  Am.  Dec.  107,  109 ;  Hairston  v. 
Hairston,  27  Miss.  704,  61  Am.  Dec.  530  ;  Mitchell  v.  United  States,  21 
Wall.  350  ;  Allgood  v.  WUliams,  92  Ala.  551,  8  So.  722  ;  Price  v.  Price,  156 
Penn.  St.  617,  27  Atl.  291  ;  White  v.  Tennant,  31  W.  Va.  790,  8  S.  E.  596, 
597  ;  Dupuy  v.  Wurtz,  53  N.  Y.  556 ;  De  Meli  v.  De  Meli,  120  N.  Y.  485, 
491  ;  City  of  Hartford  v.  Champion,  58  Conu.  268,  20  Atl.  471,  473-474  ; 
Shaw  V.  Shaw,  98  Mass.  158. 

*  Dupuy  V.  Wurtz,  53  N.  Y.  556  ;  De  Meli  v.  De  MeU,  120  N.  Y.  485, 
491  ;  Vischer  v.  Vischer,  12  Barb.  (N.  Y.)  640;  Steer's  Succession,  47  La. 
Ann.  1551,  18  So.  503,  504  ;  Mayo  v.  Equitable,  etc.  Society,  71  Miss.  590, 
15  So.  791  ;  Hart  v.  Lindsey,  17  N.  H.  235,  43  Am.  Dec.  597,  601  ;  Lowry 
V.  Bradley,  1  Speer's  Eq.  (S.  C.)  1,  39  Am.  Dec.  142,  143-144, 

1  31  W.  Va.  790,  8  S.  E.  596,  597.  See  also  HiU  v.  Hill,  166  111.  54, 
46  N.  E.  751.  The  difficulty,  where  the  term  "  residence  "  is  used,  is  that 
there  is  an  implication  that  the  stay  must  be  more  or  less  protracted,  and  that 
if  merely  momentary,  eren  though  there  exists  at  the  time  an  intention  to 
remain  permanently,  it  will  not  suffice  to  create  a  domicil.  The  reverse  oX 
this  is  true,  however,  as  shown  by  the  above  casen. 


116  ACTUAL  PRBSBNCE.  §  60 

went  with  his  family  to  a  house  in  another  State  where  he  in- 
tended to  reside  thereafter.  After  he  and  his  family  arrived  at 
their  new  house,  only  about  one  half  mile  from  the  State  line, 
they  deposited  their  baggage,  and  returned  the  same  day  to 
spend  the  night  with  a  relative  residing  across  the  line  in  the 
State  of  their  former  home,  intending  to  return  the  following 
morning.  But  the  man  was  detained  there  by  sickness  and  sub- 
sequently died  there,  never  having  returned  to  his  new  home, 
and  never  having  in  fact  resided  there.  The  court  however 
held  him  domiciled  in  the  State  of  his  new  home,  because, 
though  he  had  never  actually  lived  there,  he  had  been  physically 
present  there  with  the  intention  forthwith  to  make  it  his  per- 
manent home.* 

Since  physical  presence  (coupled  with  the  animus  manendi) 
is  all  that  is  required,  it  is  immaterial  to  inquire  whether  the 
party  is  living  in  a  house  of  his  own,  in  a  rented  house,  iu  a 
hotel,  in  lodgings,  or  has  no  place  to  lay  his  head.  These  may 
be,  and  often  are,  of  the  greatest  importance  as  evidences 
whereby  to  determine  whether  he  has  the  proper  animus ;  but 
if  that  is  established  otherwise  they  become  unimportant." 

But  it  must  not  be  supposed  that  the  physical  presence  must 
continue  in  order  to  the  formation  of  the  domicil  of  choice.  At 
the  moment  when  a  party,  being  present  in  a  place,  forms  the 
definite  intention  to  remain  there  permanently,  from  that  mo- 
ment a  domicil  of  choice  is  created,  which  will  in  general  con- 
tinue until  a  new  domicil  is  acquired,  though  the  party  for  a 
long  period  absents  himself,  or  though  he  is  actually  there  for 
ever  so  short  a  time.* 

3  See  also  Lowry  v.  Bradley,  1  Speer's  Eq.  (S.  C.)  1,  39  Am.  Dec.  142, 
144. 

'  Guier  v.  O'Daniel,  1  Binn.  (Penn.)  349,  note.     See  ante,  §  24. 

*  Dicey,  Confl.  L.  107.  Mr.  Dicey  names  "residence"  as  the  first  essen- 
tial of  domicil,  defining  it  as  "habitual  physical  presence  in  a  country,"  and 
then  finds  it  necessary  to  define  ' '  habitual. "  It  is  submitted  that  the  word 
"habitual"  is  unnecessary.  All  such  qualifications  tend  to  confound  the 
factum  with  the  animus,  and  also  tend  to  confuse  the  creation  of  the  domicii 
with  its  continuance,  which  latter  is  presumed  generally,  until  physical  pres- 
ence elsewhere  coupled  with  the  animus  manendi  creates  a  new  domicil.  See 
Hart  V.  Lindsey,  17  N.  H.  235,  43  Am.  Dec.  601  ;  Lowry  v.  Bradley.  1  Speer'a 


§  61  THE  ANIMUS   MANENDI.  117 

Physical  presence  in  a  country  is  a  tangible  fact,  and  may  be 
proved,  like  other  facts  of  that  kind,  by  the  testimony  of  eye- 
witnesses or  by  circumstantial  evidence.  It  is  susceptible  of 
easier  proof  than  the  animus,  because  it  is  tangible,  visible,  and 
more  or  less  notorious,'  while  the  intention,  being  rarely  ex- 
pressed, must  usually  be  inferred  from  the  acts  of  the  parties  or 
from  surrounding  circumstances. 

Circumstantial  evidence  is  seldom  needed  to  prove  the  fact  of 
presence.  If  such  evidence  is  called  for,  it  will  usually  be  by 
reason  of  uncertainty  as  to  the  party's  identity.  In  most  cases 
where  a  question  of  domicil  is  raised,  the  dispute  is  not  with  re- 
gard to  the  party's  presence,  but  with  respect  to  the  intention.* 

§  61.  The  Animas  Manendi.  —  The  last  essential  of  a  dom- 
icil of  choice  is  the  intention  to  remain  permanently  or  for  an 
indefinite  time.  The  intention  shoum  not  be  to  remain  for  a 
fixed  period  (however  long)  and  then  to  move  away.  There 
must  be  a  fixed  and  definite  purpose  to  remain  permanently,  or 
at  least  for  an  unlimited  or  indefinite  time,  without  any  definite 
intention  of  ultimate  removal.^ 

But  it  is  not  necessary  that  there  should  be  a  fixed  intention 
to  remain  during  one's  whole  life.  A  mere  floating  intention 
to  return  to  a  former  home  or  to  live  elsewhere  at  some  future 
period  unfixed  and  contingent  upon  circumstances,  as  upon  an 
indefinite  restoration  to  health  or  when  one's  fortune  has  been 
made,  will  not  prevent  the  acquisition  of  a  domicil  at  the  new 

Eq.  (S.  C.)  1,  39  Am.  Dec.  142,  143-144  ;  White  v.  Tennant,  31  W.  Va.  790, 
8  S.  E.  596,  597  ;  Hairston  v.  Hairston,  27  Miss.  704,  61  Am.  Dec.  530 ; 
Price  V.  Price,  156  Penn.  St.  617,  27  Atl.  291  ;  Hill  v.  Hill,  166  111.  54, 
46  N.  E.  751  ;  State  v.  Palmer,  65  N.  H.  9,  17  Atl.  977. 

6  Oilman  v.  Oilman,  52  Me.  165,  83  Am.  Dec.  502,  508  ;  Jac.  Dom.  §  364. 

6  Jac.  Dom.  §§  364,  365. 

1  AUgood  V.  Williams,  92  Ala.  551,  8  So,  722  ;  Young  v.  Pollak,  85  Ala. 
439,  5  So.  279,  282  ;  Hairston  v.  Hairston,  27  Miss.  704,  61  Am.  Dec.  530  ; 
Price  V.  Price,  156  Penn.  St.  617,  27  Atl.  291 ;  Hood's  Estate,  21  Penn.  St. 
106,  116 ;  Firth  v.  Firth,  50  N.  J.  Eq.  137,  24  Atl.  916,  917  ;  Harral  v.  Harral, 
39  N.  J.  Eq.  379,  51  Am.  Rep.  17,  21 ;  Hill  v.  Hill,  166  HI.  54,  46  N.  E. 
751,  752 ;  Dupuy  r.  Wurtz,  53  N.  Y.  556  ;  Vischer  v.  Vischer,  12  Barb. 
(N.  Y.)  640,  643  ;  Jennison  v.  Hapgood,  10  Pick.  (Mass.)  77,  98,  19  Am, 
Dec.  258  ;  Lowry  r.  Bradley,  1  Speer's  Eq.  (S.  C.)  1,  39  Am.  Dec.  142,  144 ; 
City  of  Hartford  v.  Champion,  58  Conn.  268,  20  All.  471,  473. 


118  COMMENCEMENT   OF  THE   INTENTION.  §  62 

abode.'  The  intention  however  must  be  settled  and  fixed.  The 
party  must  have  definitely  made  up  his  mind  to  remain.  A  mere 
probability,  however  great,  that  he  will  stay,  or  an  intention 
conditional  upon  a  contingency,  such  as  his  obtaining  employ- 
ment, finding  the  climate  suitable  to  his  health,  or  liking  the 
people  of  the  community,  will  not  suffice.' 

The  latter  case  is  to  be  distinguished  from  that  of  one  who, 
induced  by  the  probability  of  finding  employment,  a  suitable 
climate,  etc.,  definitely  determines  to  live  permanently  in  a  par- 
ticular spot.  In  the  former  case  the  definite  animus  has  not 
been  formed.  In  the  latter,  it  has  been  formed,  though  induced 
by  probabilities  only.* 

§  62.  Commencement  of  the  Intention.  —  The  animus  ma- 
nendLalone  is  not  sufficient  to  constitute  a  df'^'ifV'T  "^  ^^^^a^ 
nor  is  merepEysical  presence  enough.  Both  must  unite.  The 
moment  that  both  exist  at  the  same  time  the  domicil  is  created^ 

Hence  no  formation  of  an  intention  is  of  avail  unless  and 
until  it  is  accompanied  by  physical  presence.  Though  one 
breaks  up  his  home  in  one  State,  intending  to  remove  to  another, 
but  in  itinere  changes  his  mind  before  reaching  the  latter  State, 
he  cannot  be  held  to  have  been  domiciled  there.  He  retains  his 
abandoned  domicil  until  he  acquires  another /acio  et  animo.^ 

«  Story,  Confl.  L.  §  46  ;  Hoskins  r.  Matthews,  25  L.  J.  (Oh. )  689,  8  DeG. 
M.  &  G.  13,  35  Eng.  L.  &  Eq.  532  ;  Brunei  v.  Brunei,  L.  R.  12  Eq.  298  ; 
Steer's  Succession,  47  La.  Ann.  1551,  18  So.  503,  505 ;  Larquie  v.  Larquie, 
40  La.  Ann.  457,  4  So.  335,  336-337;  Hallett  v.  Bassett,  100  Ma.ss.  167 ; 
Holmes  v.  Greene,  7  Gray  (Mass.),  299;  Whitney  v.  Sherbom,  12  Allen 
(Mass.),  Ill,  114;  Williams ».  Saunders,  5  Coldw.  (Tenn.)  60,  79  ;  White  u. 
Tennant,  31  W.  Va.  790,  8  S.  E.  596,  597;  Ringgold  v.  Barley,  5  Md.  186, 
59  Am.  Dec.  107,  109  ;  Firth  v.  Firth,  50  N.  J.  Eq.  137,  24  Atl.  916,  917 ; 
Harral  v.  Harral,  39  N.  J.  Eq.  379,  51  Am.  Rep.  17,  21  ;  Hart  v.  Lindsey,  17 
N.  H.  235,  43  Am.  Dec.  597,  601. 

8  Ross  V.  Ross,  103  Mass.  576, 577;  Whitney  v.  Sherbom,  12  Allen  (Mass.), 
Ill,  114  ;  Mayo  ».  Equitable,  etc.  Society,  71  Miss.  590,  15  So.  791,  792  ; 
Smith  V.  People,  44  El.  23. 

*  See  Hegeman  v.  Fox,  31  Barb.  (N.  Y.)  475,  483-484. 

1  Steer's  Succession,  47  La.  Ann.  1551,  18  So.  503;  Borland  v.  Boston, 
132  Mass.  89,  42  Am.  Rep.  424  ;  Shaw  v.  Shaw,  98  Mass.  158  ;  Otis  v.  Bos- 
ton, 12  Gush.  (Mass.)  44;  Ringgold  v.  Barley,  5  Md.  186,  59  Am.  Dec.  107, 
109.     See  White  v.  Tennant,  31  W.  Va.  790,  8  S.  E.  596,  597. 


§  62  COMMENCEMENT   OF   THE   INTENTION.  119 

Some  question  has  been  raised  whether  the  same  principle 
will  apply  where  the  emigrant,  instead  of  changing  his  mind, 
dies  in  itinere.  Some  most  respectable  authority  seems  to 
favor  a  change  of  domicil  in  such  case.''  But  it  is  believed 
there  is  no  sound  principle  upon  which  this  exception  to  the 
general  rule  can  be  predicated,  and  the  weight  of  authority  is 
against  it.' 

Again,  an  intention,  though  definitely  fixed,  to  reside  in  a 
given  State  at  &  future  time,  even  though  it  be  in  the  immediate 
future,  and  though  coupled  with  actual  presence  there  at  the 
time  of  the  formation  of  the  intent,  will  not  suffice  to  consti- 
tute a  domicil  of  choice.  The  presence  must  be  coupled  with 
the  intent  to  reside  there  from  that  moment.* 

Thus,  one  who  contemplates  moving  from  one  State  to  another 

2  White  V.  Tennant,  31  W.  Va.  790,  8  S.  K  596,  597.  See  Story,  Confl. 
L.  §§  47,  48  ;  Munroe  v.  Douglas,  5  Madd.  405.  Judge  Story  however  here 
applies  this  principle  only  in  case  the  party  is  returning  from  a  foreign  dom- 
icil of  choice  to  his  original  or  native  domicil,  but  he  does  not  confine  it  to 
the  case  of  death  in  itinere.  He  admits  the  doctrine  in  any  case  where  a  party 
leaves  a  foreign  domioil  of  choice  on  a  final  return  to  his  original  domicil, 
basing  it  upon  the  maxim  that  the  domicil  of  origin  easily  reverts.  See  post, 
§§  65,  66. 

»  Bell  V.  Kennedy,  L.  R.  3  H.  L.  323  ;  Brace  v.  Brace,  2  Bos.  &  Pul.  229, 
230,  note ;  Shaw  v.  Shaw,  98  Mass.  158  ;  Harvard  College  v.  Gore,  5  Pick. 
(Mass.)  370. 

*  See  Otis  v.  Boston,  12  Cush.  (Mass.)  44.  The  case  of  White  v.  Tennant, 
31  W.  Va.  790,  8  S.  E.  596,  597,  is  not  opposed  to  this  view,  though  at  first 
sight  it  appears  to  be.  In  that  case,  the  party  broke  up  his  establishment  in 
West  Virginia  and  removed  to  a  house  across  the  State  line  in  Pennsylvania, 
which  he  had  already  rented.  Upon  leaving  his  West  Virginia  honse  in  the 
morning,  he  intended  to  make  the  Pennsylvania  house  forthwith  his  home, 
intending  to  remain  there  thenceforward.  But  after  arriving  there  he  decided 
to  return  for  the  night  to  his  brother's  house  in  Pennsylvania,  where  he  waa 
taken  ill  and  died,  without  ever  having  returned  to  the  Pennsylvania  house. 
It  was  held  he  was  domiciled  in  Pennsylvania.  This  decision  was  clearly  cor- 
rect. The  physical  presence  in  Pennsylvania  united  with  the  intention  to  re- 
side there  permanently  from  that  moment.  His  subsequent  decision  to  return 
for  the  night  to  West  Virginia  did  not  aCFect  the  question.  If  when  he  started 
out  that  day  from  the  West  Virginia  house  he  had  had  the  intention  not  to 
begin  his  residence  in  the  Pennsylvania  house  until  the  following  morning,  the 
decision  would  probably  have  been  different. 


120  DURATION  OP  THE  INTENTION.  §  63 

and  goes  thither  to  select  a  suitable  dwelling  before  moving, 
will  not  by  that  act  alone  be  held  to  have  acquired  a  domicil 
there.  His  intention  to  reside  will  be  regarded  as  conjectural 
merely,  and  not  definite  enough  to  create  a  domicil ;  nor  has  he 
in  such  case  as  yet  finally  abandoned  his  former  domicil.*  But 
if  under  like  circumstances,  before  he  goes  into  the  new  State 
upon  his  tour  of  investigation,  he  breaks  up  his  establishment 
in  his  former  domicil  entirely,  even  though  he  does  not  bring 
his  family  with  him  but  sends  them  to  a  third  State  pending 
his  selection  of  a  dwelling-place,  so  that  he  does  not  anticipate 
returning  to  his  former  domicil  at  all,  it  is  said  that  he  will 
acquire  a  new  domicil  even  before  a  final  settlement,  for  he  has 
definitely  abandoned  his  former  domicil.* 

On  the  other  hand,  it  is  not  essential  to  the  creation  of  a 
domicil  of  choice  that  the  intention  should  be  formed  immedi- 
ately upon  one's  entry  into  a  State.  The  mere  presence  there 
will  not  suffice  of  itself;  there  must  be  an  intention  also,  and 
until  both  concur  no  domicil  arises.  But  the  intention  may 
spring  up  later,  and  if  the  actual  presence  continues  at  that 
time  the  new  domicil  is  at  that  instant  acquired.'' 

§  63.  Duration  of  the  Intention.  —  A  domicil  once  created 
is  retained  until  another  is  acquired,  which  in  the  case  of  a 
domicil  of  choice  can  in  general  only  be  facto  et  animo.  If  the 
purpose  to  remain  in  a  country  permanently  has  once  existed, 
and  while  in  existence  was  coupled  with  actual  physical  pres- 

6  Behrensmeyer  v.  Rreitz,  135  111.  591,  26  N.  E.  704 ;  Cooper  v.  Beers, 
143  111.  25,  33  N.  E.  61.  See  Bruce  v.  Bruce,  2  Bos.  &  Pul.  229,  230,  note  ; 
Guier  v.  O'Daniel,  1  Binn.  (Penn.)  349,  note. 

«  Behrensmeyer  v.  Kreitz,  135  III.  591,  26  N.  E.  704.  See  Cooper  v. 
Beers,  143  111.  25,  33  N.  E.  61.  In  the  latter  case,  it  seems  from  the  opinion 
that  there  had  been  no  actual  breaking  up  of  the  establishment  in  St.  Louis 
(the  parties'  former  home).  The  court  says  :  *'  No  act  intended  as  an  act  of 
removal  or  in  aid  of  removal  to  Illinois  is  proved."  If  the  proposition  men- 
tioned in  the  text  is  true,  a  fortiori  would  it  apply  if  the  party  brings  his 
family  with  him  to  the  State  of  his  intended  residence.  See  White  v.  Tennant, 
31  W.  Va.  790,  8  S.  E.  596.  The  whole  principle  however  must  be  taken  in 
gubordination  to  what  has  been  said  ante,  §  24. 

7  Udny  V.  Udny,  L.  R.  1  Sc.  App.  441,  458.  See  Colbum  v.  Holland, 
14  Rich.  Eq.  (S.  C.)  176,  233. 


§  64  EVIDENCE   OP   ANIMUS   MANENDI.  121 

ence  there,  a  domicil  of  choice  arises.  And  since  it  can  be 
changed  thereafter  only  by  the  acquisition  of  a  new  domicil  in 
the  same  way,^  it  follows  that  no  subsequent  change  of  intention 
(alone),  though  the  change  take  place  the  next  day  or  the  next 
moment,  will  effect  a  change  of  domicil. 

We  may  even  go  a  step  further  and  lay  it  down  as  a  corollary 
that  though  physical  absence  from  the  country  be  united  with 
an  intention  to  make  that  country  no  longer  the  party's  home, 
the  domicil  will  not  in  general  be  thereby  destroyed.  These 
mere  negative  propositions  will  effect  no  change  of  domicil.  The 
propositions  must  be  affirmative.  The  party  must  not  only  be 
absent  from  his  former  home,  but  must  be  present  in  the  new ;  he 
must  not  only  intend  not  to  make  the  former  home  his  permanent 
abode  hereafter,  but  must  affirmatively  intend  to  make  the  new 
home  his  permanent  abiding  place.  And  both  these  affirmative 
propositions  must  coexist.' 

§  64.  Evidence  of  Animus  Manendi.  —  As  in  all  questions 
of  intention,  it  is  often  extremely  difficult  to  arrive  at  a  certain 
conclusion  touching  the  animus  manendi  in  cases  of  domicil. 
Much  of  the  difficulty  in  ascertaining  the  domicil  arises  from 
this  source.  The  trouble  for  the  most  part  lies  in  the  fact  that 
the  intention  is  rarely  expressed,  and  must  be  inferred  from 
all  the  surrounding  circumstances. 

The  question  in  such  cases  is  not  what  the  party  has  said, 
but  what  was  his  real  intention.  The  fact  that  one  openly 
proclaims  a  place  to  be  his  permanent  home  does  not  make  it  so 
unless  in  fact  the  intention  to  reside  there  permanently  exists. 
In  general,  however,  the  declarations  of  the  party  are  admitted 
in  evidence  of  the  intention,  as  part  of  the  res  gestce.^ 

^  A  modification  of  this  principle  may  be  noted  in  the  case  of  a  party  who 
abandons  a  foreign  domicil  of  choice,  purposing  to  return  to  the  country  ot 
which  he  is  a  citizen.     See  post,  §  66. 

2  See  City  of  Hartford  v.  Champion,  58  Conn.  268,  20  Atl.  471 ;  Dupuy  v. 
Wurtz,  53  N.  Y.  556  ;  Jennison  v.  Hapgood,  10  Pick.  (Mass.)  77,  98,  19  Am. 
Dec.  258 ;  Shaw  o.  Shaw,  98  Mass.  158  ;  Price  v.  Price,  156  Penn.  St.  617,  27 
Atl.  291  ;  Cooper  v.  Beers,  143  111.  25,  33  N.  E.  61;  Mitchell  v.  United  States, 
21  Wall.  350. 

1  Jac.   Dom.   §§   449   et  seq.,  to  which  the  reader  is  referred  for  a  full 


122  EVIDENCE  OF  ANIMUS  MANENDI.  §  64 

Frequently  there  are  no  declarations,  or  they  are  ambiguous 
or  untrustworthy  as  evidence.  In  such  cases  the  courts  are  com- 
pelled to  rely  upon  the  acts  of  the  party  and  the  surrounding  cir- 
cumstances. In  the  decision  of  this  question  there  are  no  points 
in  a  man's  life,  however  trifling  they  may  appear,  which  may  not 
be  examined.  Amongst  the  acts  and  circumstances  which  have 
been  considered  by  the  courts  in  the  determination  of  domicil 
are  the  exercise  of  the  voting  franchise ;  "  the  payment  of  taxes 
on  personalty ;  *  the  ownership  of  a  place  of  residence  or  of 
business ;  *  continued  residence  in  a  country  ;  *  attendance  upon 
a  church,  and  active  participation  in  its  affairs ; '  and  various 
other  circumstances  of  themselves  trivial  but  sufficient  to  turn 

discussion.  See  Guier  v.  O'Daniel,  1  Binn.  (Penn.)  349,  note;  Wilson  v. 
Terry,  11  Allen  (Mass.),  206  ;  Holmes  v.  Greene,  7  Gray  (Mass.),  299,  300  ; 
Viles  V.  Waltham,  157  Mass.  542,  32  N.  E.  901  ;  Thomdike  v.  Boston,  1  Met. 
(Mass.)  242 ;  Mitchell  v.  United  States,  21  Wall.  350  ;  Ennis  v.  Smith,  14 
How.  400,  401 ;  Hairston  v.  Hairston,  27  Miss.  704,  61  Am.  Dec.  580  ;  Steer's 
Succession,  47  La.  Ann.  1551,  18  So.  503,  506 ;  Robert's  Will,  8  Pai.  Ch. 
(N.  Y.)  519;  Hegeman  v.  Fox,  31  Barb.  (N.  Y.)  475,  478-479;  Fulham  v. 
Howe,  62  Vt.  386,  20  Atl.  101.  But  see  Wright  v.  Boston,  126  Mass.  161  ; 
Ayer  v.  Weeks,  65  N.  H.  248,  18  Atl.  1108. 

2  Jac.  Dom.  §§  435  et  seq.  ;  Mitchell  v.  United  States,  21  Wall.  350; 
Steer's  Succession,  47  La.  Ann.  1551,  18  So.  503,  506.  Voting  has  even  been 
said  to  be  conclusive  evidence  of  the  party's  intention  to  remain  permanently, 
since  there  should  be  no  presumption  of  fraud  on  the  part  of  the  voter.  See 
Shelton  v.  Tiffin,  6  How.  163.  But  the  weight  of  authority  is  in  favor  of  its 
being  considered  only  prima  facie  evidence  of  the  animus  manendi,  since  it 
may  result  from  fraud  or  from  the  voter's  bona  fide  mistake  as  to  his  legal 
rights.  East  Livermore  v.  Farmington,  74  Me.  154 ;  Easterly  v.  Goodwin, 
35  Conn.  279  ;  Hayes  v.  Hayes,  74  111.  312;  Folgerw.  Slaughter,  19  La.  Ann. 
323. 

«  Jac.  Dom.  §§  442  et  seq. ;  Mitchell  v.  United  States,  21  Wall.  350  ;  Har- 
vard College  V.  Gore,  5  Pick.  (Mass.)  370.  Such  property  is  liable  to  taxation 
generally  at  the  domicil  of  the  owner. 

*  Some  authorities  are  inclined  to  give  these  last  preponderating  weight. 
See  Story,  Confl.  L.  §§  46,  47.  But  though  raising  strong  presumptions,  they 
are  not  conclusive.    Jac.  Dom.  §§  401,  410  et  seq. 

6  Dupuy  w.  Wurtz,  53  N.  Y.  556;  Elbers  v.  Ins.  Co.  16  Johns.  (N.  Y.) 
128  ;  Mowry  v.  Latham,  17  R.  I.  480,  23  Atl.  13 ;  Ennis  v.  Smith,  14  How. 
400,  401 ;  Shelton  v.  Tiffin,  6  How.  163.  But  see  Jopp  v.  Wood,  4  DeG.  J.  & 
8.  616,  622. 

•  Fulham  v.  Howe,  62  Vt.  386,  20  Atl.  101. 


§  64  EVIDENCE  OF   ANIMUS   MANENDI.  123 

the  scale  in  a  close  case,  many  of  which  will  be  found  enumer- 
ated in  more  copious  treatises  on  the  subject  of  Domicil.' 

There  is  one  combination  of  circumstances  which  deserves 
special  attention  in  this  connection  and  has  given  the  courts 
much  trouble.     It  is  the  case  of  double  residence. 

A  perfton  may  haye  two  residences  between  which  he  divides 
his  time,  ^ince  he  can  have  only  one  domicJL  it  is  often 
difficult  to  tell  which  should  be  so  regarded^__Jf  ona-4g  his, 
principaT  establishment,  the  other  being  used  only  for  short 
periods  of  the  year,  the  first  will  clearly  be  the  place  of  his 
doHiicil.*  Or  if  one  is  his  residence  and  the  other  his  place  of 
business,  though  he  actually  spends  more  time  at  the  latter, 
there  can  be  no  doubt  that  the  first  is  his  domicil.'  But  if  both 
are  residences,  and  he  passes  about  an  equal  portion  of  the  year 
in  each,  with  his  family  and  establishment,  it  often  becomes  ex- 
tremely difficult  to  decide  which  is  his  domicil.  Great  weight 
in  these  doubtful  cases  should  be  attached  to  the  presumption  of 
the  retention  of  a  prior  domicil,  and  unless  the  evidence  clearly 
predominates  in  favor  of  the  home  last  acquired,  the  presump- 
tion should  be  in  favor  of  the  first  as  the  party's  domicil." 

In  the  absence  of  any  circumstances  from  which  the  courts 
may  infer  the  animus,  they  are  accustomed  to  fall  back  on  two 
legal  presumptions,  without  which  it  would  in  some  cases  be 
impossible  to  arrive  at  any  conclusion  as  to  a  party's  domicil. 

The  first  of  these  is  the  presumption  that  the  party  has  re- 
tained the  last  domicil  known  to  have  been  possessed  by  him. 
This  follows  from  the  principle  that  a  domicil  once  acquired  is 
retained  until  another  is  gained,  and  from  the  other  principle 
growing  out  of  it  that  the  burden  of  proof  is  on  him  who  alleges 
a  change  of  domicil.^^ 

^  See  Jac.  Dom.  eh.  xxii  et  seq.  ;  Wliart  Confl.  L.  §§  63  et  seq.  ;  Dicey, 
Confl.  L.  134,  135;  Story,  Confl.  L.  §§  46-49. 

8  Thayer  v.  Boston,  124  Mass.  132.  »  Ibid. 

10  See  Jac.  Dom.  §§  422,  423  ;  Oilman  v.  Oilman,  52  Me.  165,  83  Am.  Dec. 
602,  507.     In  Chenery  v.  Waltham,  8  Cush.  (Mass.)  327,  a  curious  instance 
of  double  residence  occurred,  the  dividing  line  between  two  towns  running 
through  a  man's  house.     See  Jac.  Dom.  §  425. 
u  Dicey,  Confl.  L.  133  ;  ante,  §§  29,  56. 


124  EFFECT   OF  ABANDONMENT   OF  DOMICIL.  §  65 

The  second  is  the  presumption  of  domicil  inferred  from  mere 
presence  in  a  country,  in  the  absence  of  evidence  to  the 
contrary. 

We  have  already  seen  that  residence  in  a  country  may 
je  ground  to  infer  the  animus  manendi,  in  the  absence  of 
evidence  to  the  contrary.^'^  This  second  presumption  proceeds 
a  step  further,  and  provides  for  those  cases  (otherwise  not  to  be 
solved)  in  which  all  that  is  known  of  the  party  is  that  he  is 
found  in  a  particular  State.  A  newborn  child  may  be  laid  at 
some  one's  door,  or  a  stranger  may  be  found  dead,  leaving  no 
clue  to  identify  him.  In  these  cases,  there  being  no  evidence 
upon  which  to  base  an  opinion,  since  according  to  the  general 
principle  no  person  can  ever  be  without  a  domicil,  the  law  must 
rely  upon  the  weak  presumption  afforded  by  mere  presence  there. 
There  is  no  ground  upon  which  to  fix  his  domicil  elsewhere.^' 

§  65.  Effect  of  Abeuidonment  of  Domicil  —  Conflicting 
Views.  —  In  the  case  of  the  domicil  of  origin,  it  is  very  clear 
that  the  intention  to  abandon  it  permanently,  even  when  coupled 
with  an  actual  abandonment  thereof  in  pursuance  of  such  inten- 
tion, will  not  cause  it  to  be  lost,  provided  the  party  does  not 
acquire  a  new  domicil,  for  no  person  can  be  without  a  domicil, 
and  there  is  none  other  that  can  be  assigned  him.^ 

But  if  the  abandoned  domicil  be  not  the  domicil  of  origin,  it 
is  possible  for  his  original  domicil  to  be  assigned  him.  Even 
though  no  new  domicil  be  acquired,  the  party  will  always  have 

"  Dupuy  V.  Wurtz,  53  N.  Y.  556 ;  Elbers  v.  Ins.  Co.,  16  Johns.  (N.  Y.) 
128  ;  Mowry  v.  Latham,  17  R.  I.  480,  23  Atl.  13  ;  Ennis  v.  Smith,  14  How. 
400,  401. 

18  Dicey,  Confl.  L.  132-133 ;  Jac.  Dom.  §§  375,  376  ;  Bempde  v.  Johnstone, 
3  Ves.  Jr.  198  ;  Bruce  ^.  Bruce,  2  Bos.  &  Pul.  229,  230,  note  ;  Taylor  v. 
Sharp,  108  N.  C.  377,  13  S.  E.  138  ;  Guier  v.  O'Daniel,  1  Binu.  (Penn.)  349, 
note.  See  Flood  v.  Growney,  126  Mo.  262,  28  S.  W.  860.  We  have  seen  the 
application  of  this  principle  to  determine  the  original  domicil  of  foundlings, 
ante,  §  34. 

1  De  Meli  v.  De  Meli,  120  N.  Y.  485,  491 ;  Price  v.  Price,  156  Penn.  St. 
617,  27  Atl.  291;  Hallett  v.  Bassett,  100  Mass.  167  ;  Shaw  v.  Shaw,  98  Mass. 
168  ;  Jennison  v.  Hapgood,  10  Pick.  (Mass. )  77,  98,  19  Am.  Dec.  258 ;  Har- 
vard  College  v.  Gore,  5  Pick.  370  ;  Bell  v.  Kennedy,  L.  R.  3  H.  L.  307.  But 
see  In  re  Rice,  42  Mich.  528,  4  N.  W.  284. 


§  65  EFFECT   OF   ABANDONMENT   OF  DOMICIL.  125 

his  domicil  of  origin  in  reserve,  which  he  may  consider  his 
home.  In  such  case  therefore  the  question  arises,  Shall  the 
presumption  of  the  retention  of  the  la^t  domicil  be  respected  ? 
Shall  the  party,  having  voluntarily  abandoned  a  foreign  domicil, 
be  considered  as  still  residing  there,  contrary  to  the  notorious 
fact  and  to  his  evident  desire  and  intention,  merely  because  he 
has  not  yet  made  a  home  for  himself  elsewhere  ?  Or  shall  he 
be  presumed  (for  the  nonce)  to  have  resumed  his  original  and 
native  domicil  ? 

The  English  authorities  are  in  favor  of  the  latter  view,  hold- 
ing one  who  has  abandoned  a  foreign  domicil  but  has  not 
acquired  a  new  one  to  have  resumed  ipso  facto  his  domicil 
of  origin,  though  he  has  no  intention  of  actually  returning 
thither.  2 

Mr.  Jacobs  considers  the  American  doctrine  to  be  that  the 
domicil  of  origin  reverts  only  in  the  single  case  where  the  party, 
upon  an  abandonment  of  his  foreign  domicil,  sets  out  to  return 
to  his  original  domicil ;  he  then  acquires  as  his  domicil,  even  in 
itinere,  the  domicil  of  origin.'  But  it  cannot  be  doubted  that 
the  great  current  of  American  authority  lays  down  the  principle 
without  qualification  that  a  domicil  onffo  arqniTPrl  ]}j  on&sui 
juris  is  retained,  even  after, abandon mftnt, — mitil  another_i8 
acquired^ac^Q  et  animo,  and  no  hint  is  given  of  any  exception.* 

The  ca8_es  cited  (by  no  means  ^t]  ftYTiannfiVft  ^^ll^ctiou)  ave 
believed  to  establish  the  American  doctrine  in  favor  of  the  reten- 
tion of  the  former  domicil  in  all  cases  until  another  is  acquired 
animo  et  facto. 

2  Dicey,  Confl.  L.  117,  118 ;  Udny  v.  Udny,  L.  R.  1  Sc.  App.  441,  454 
See  also  Story,  Confl.  L,  §  48 ;  The  Venus,  8  Cr.  253. 

8  Jac.  Dom.  §  201.     See  also  Story,  Confl.  L.  §  47. 

*  Mitchell  V.  United  States,  21  "Wall.  350 ;  Desmare  v.  United  States, 
93  U.  S.  605 ;  Allgood  v.  Williams,  92  Ala.  551,  8  So.  722  ;  Lowry  v.  Bradley, 
1  Speer's  Eq.  (S.  C.)  1,  39  Am.  Dec.  142  ;  Price  v.  Price,  156  Penn.  St.  617, 
27  Atl.  291 ;  City  of  Hartford  v.  Champion,  58  Conn.  268,  20  Atl.  471 ; 
Olson's  Will,  63  la.  145,  18  N.  W.  854  ;  Hood's  Estate,  21  Penn.  St.  106  ; 
Williams  r.  Saunders,  5  Coldw.  (Tenn.)  60,  79,  80;  Harvard  College  v.  Gore, 
5  Pick.  (Mass.)  370 ;  Shaw  v.  Shaw,  98  Mass.  158  ;  Vischer  v.  Vischer, 
12  Barb.  (N.  Y.)  640,  643.  Indeed,  in  Harvard  College  v.  Gore,  supra,  the 
court  expressly  disapproves  such  an  exception. 


126  ABAJTDONMBNT  —  SOLUTION   SUGGESTED.  §  66 

§  66.  Same  —  A  Solution  suggested.  —  Mr.  Jacobs  has 
pointed  out  some  strong  objections  to  the  English  view  of  the 
reverter  of  the  original  domicil,*  and  the  English  judges  have 
denounced  the  American  rule  as  entirely  irrational.  "^  Indeed 
objection,  more  or  less  pronounced,  may  be  taken  to  all  the 
theories  mentioned  in  the  preceding  section. 

There  is  another  theory,  not  specifically  adverted  to  by  the 
authorities,  which  is  submitted  as  being  logical  and  at  the  same 
time  going  far  to  reconcile  the  conflicting  views,  lying  as  it  does 
between  the  extremes. 

A  distinction  should  be  taken  between  those  cases  where  the 
party's  ties  to  the  original  domicil  may  be  presumed  to  be  close 
and  those  where  they  are  of  a  slight  character:  between  those 
cases  where  the  party  owes  allegiance  to,  and  is  a  citizen  of,  the 
country  of  his  origin,  whither  his  thoughts  would  naturally 
turn,  and  those  cases  where  he  has  either  never  owed  such  alle- 
giance to  that  country  or  else  has  thrown  it  off  by  naturalization 
elsewhere. 

It  is  manifest  that  an  Englishman,  born  in  England  of  parents 
domiciled  there,  who  lives  there  until  he  is  twenty-one,  but  who 
subsequently  changes  his  domicil  to  Holland,' would  regard  him- 
self, if  he  should  abandon  his  Dutch  domicil,  still  an  English- 
man, and  his  home  as  in  England  until  he  selects  another 
(though  he  does  not  return  thither).*  In  such  case,  it  is  plainly 
reasonable  that  the  law  should  not  compel  him  to  retain  his 
Dutch  domicil  and  be  governed  in  many  respects  by  its  laws, 
after  he  has  deliberately  abandoned  it.  On  the  contrary,  it 
would  be  natural  and  just  to  infer  that  he  intends  to  resume  liis 
English  domicil  of  origin  in  the  interim,  though  he  does  not 
actually  return  to  England  and  does  not  intend  to  do  so.  The 
question  is  not  whether  he  intends  to  live  in  England,  but 
whether  he  intends  to  place  himself  in  the  same  position  he 
would  have  occupied  if  he  had  acquired  no  domicil  of  choice. 

1  Jac.  Dom.  §  199.  *  Udny  v.  Udny,  L.  R.  1  Sc.  App,  441. 

'  This  is  the  case  suggested  by  Lord  Westbnry  in  Udny  v.  Udny,  L.  R. 
1  Sc.  App.  441. 

*  This  case  is  adduced  in  Udny  v.  Udny,  supra,  against  the  retention 
theory. 


§  66  ABANDONMENT  —  SOLUTION   SUGGESTED.  127 

Now  let  us  suppose  the  same  Englishman  to  be  born  of  Eng- 
lish parents,  domiciled  at  the  time  of  his  birth  in  America,  who 
shortly  afterwards  return  to  England  to  live,  and  there  bring 
up  their  son,  the  other  circumstances  remaining  the  same.'  He 
has  no  ties  of  allegiance  or  connection  with  America.  There  is 
no  logical  reason  here  to  suppose  that,  having  abandoned  his 
Dutch  domicil  as  before,  he  would  look  upon  America,  his  acci- 
dental domicil  of  origin,  as  his  home,  rather  than  England.* 

Or  if  his  domicil  of  origin  be  English,  but  he  (or  his  parents 
for  him),  having  in  childhood  or  after  maturity  deliberately 
severed  the  ties  of  allegiance  that  bind  him  to  that  country, 
becomes  a  naturalized  citizen  of  the  United  States,  and  then 
(as  before)  acquires  and  abandons  his  Dutch  domicil,  why  should 
the  law  presume  that  he  regards  England  as  his  home,  whose 
allegiance  he  has  cast  off,  rather  than  America,  whose  citizen  he 
is  ?  In  such  case,  England  certainly  has  the  least  claim  of  any 
of  the  States  concerned. 

The  true  theory  (if  we  do  not  accept  citizenship  in  all  such 
cases  as  the  true  basis'),  it  is  submitted,  is  that,  upon  an  aban- 
donment of  a  foreign  domicil,  none  being  actually  acquired  else- 
where, the  original  domicil  is  resumed,  if  it  be  the  State  whereof 
the  party  is  a  citizen  (whether  native  or  naturalized),  for  the 
law  may  justly  presume  him  when  homeless  to  look  upon  that 
country  as  his  home.  But  if  he  were  never  a  citizen  of  the 
country  wherein  is  his  domicil  of  origin,  or  if  he  has  since  be- 
come a  naturalized  citizen  of  another,  the  reason  ceases  for  this 
exception  to  the  general  rules  regulating  the  acquisition  of  domi- 
cil, and  the  doctrine  of  the  retention  of  the  domicil,  until  a  new 
one  is  acquired  yac^o  et  animo,  will  apply. 

This  is  in  accord  with  the  great  mass  of  American  authority, 
which,  as  we  have  seen,  pays  little  heed  to  the  English  principle 

*  This  is  in  substance  the  case  supposed  by  Mr.  Jacobs  to  illustrate  the 
irrational  character  of  the  English  doctrine  of  reverter  of  original  domiciL 
See  Jac.  Dom.  §  199. 

•  See  Douglas  o.  Douglas,  L.  R.  12  Eq.  617,  643. 

^  The  most  reasonable  doctrine  is  to  adopt  citizenship  in  this  instance  as 
the  criterion  of  domicil,  under  %X\.  circumstances,  but  as  yet  none  of  the  au- 
thorities have  gone  so  far. 


128  ABANDONMENT SOLUTION   SUGGESTED.  §  66 

of  the  reverter  of  the  original  domicil.  For  with  us,  a  citizen 
of  the  United  States,  no  matter  where  his  domicil  of  origin,  is  a 
"citizen  oi  the  State  wherein  he  resides  (or  is  domiciled).*  Hence, 
upon  the  principle  above  mentioned,  a  citizen  of  the  United 
States,  whose  original  domicil  is  in  one  State,  who  acquires  a 
domicil  of  choice  in  another,  which  he  subsequently  abandons 
(acquiring  no  new  domicil  elsewhere)  should  not  resume  his 
domicil  of  origin  in  the  interim,  but  should  retain  his  last 
domicil  until  he  actually  acquires  another /acio  et  animo.  For, 
when  he  abandons  the  State  of  his  original  domicil  and  becomes 
domiciled  in  another  State  of  the  Union,  he  ipse  facto  abandons 
his  citizenship  of  the  first  State  also,  and  there  is  no  ground 
upon  which  to  base  a  presumption  of  the  reverter  of  the  original 
domicil.  The  case  is  thus  seen  to  be  similar  to  that,  above  ad- 
verted to,  of  the  Englishman  who  abandons  his  Dutch  domicil 
of  choice,  after  becoming  a  naturalized  American  citizen.' 

In  Udny  v.  Udny,  ^^  Lord  Westbury  criticises  a  doctrine  nearly 
approaching  this  laid  down  in  First  Nat.  Bank  v.  Balcom,^^  de- 
claring that  to  so  hold  ''is  to  confound  the  political  and  civil 
states  of  an  individual,  and  to  destroy  the  difference  between 
patria  and  domicilium." 

'  U.  S.  Const.  Amendment  XIV. 

*  It  is  worthy  of  remark  that  some  of  the  American  courts  seem  to  have 
taken  this  view.  First  Nat.  Bank  v.  Balcom,  35  Conn.  351 ;  Steer's  Succes- 
sion, 47  La.  Ann.  1551,  18  So.  503,  504;  In  re  Rice,  42  Mich.  528,  4  N.  W. 
284.  But  see  dictum  in  Allen  v.  Thoraason,  11  Humph.  (Tenn.)  536,  54  Am. 
Dec.  55,  57,  quoting  Story,  Confl.  L.  §  47.  Story's  view,  it  is  believed,  is  not 
far  removed  from  that  above  given.  He  says  (§  48) :  "A  national  character 
acquired  in  a  foreign  country  by  residence  changes  when  the  party  has  left  the 
country  animo  non  revertendi,  and  is  on  his  return  to  the  country  where  he 
had  his  antecedent  domicil.  And  especially  if  he  be  in  itinere  to  his  native 
country  with  that  intent,  his  native  domicil  revives  while  he  is  yet  in  tran- 
situ, for  the  native  domicil  easily  reverts.  The  moment  a  foreign  domicil  is 
abandoned,  the  native  domicil  is  reacquired." 

w  L.  R.  1  Sc.  App.  441,  460. 

11  35  Conn.  351.  In  that  case  the  court  uses  the  following  language, 
which  was  the  subject  of  Lord  Westbury's  animadversion :  "  The  principle 
that  a  native  domicil  easily  reverts  applies  only  to  cases  where  a  native  citizen 
of  one  country  goes  to  reside  in  a  foreign  country,  and  there  acquires  a  domicil 
by  residence  without  renouncinj^  his  original  allegiance      In  such  cases  his 


§  67  SITUS  OF  CORPORATIONS.  129 

With  all  the  deference  due  to  such  eminent  authority,  t  is 
submitted  that  to  advert  to  citizenship  as  a  means  of  deter- 
mining the  probable  intention  and  wishes  of  the  party  is  not 
to  confound  citizenship  with  domicil,  but,  on  the  contrary,  to 
recognize  them  as  distinct,  and  from  the  natural  influence  of 
nationality  or  citizenship  to  deduce  the  probable  intention  to 
resume  the  domicil  of  origin  or  not  to  resume  it. 

There  are  other  instances  in  which  the  probability  of  an  in- 
tention or  a  desire  to  consider  a  particular  country  as  one's 
permanent  home  supplies  a  rule  whereby  to  ascertain  the  con- 
structive domicil,  as  in  the  case  of  infants  and  married  women. 

And  the  effect  of  a  probability  of  one's  desire  to  resign  his 
domicil  of  origin  on  account  of  citizenship  in  another  country 
is  expressly  recognized  in  several  cases  as  entitled  to  great 
weight.^* 

There  seems  therefore  to  be  no  valid  reason  why  the  proba- 
bility of  one's  desire  to  resume  his  domicil  of  origin,  upon  the 
abandonment  of  a  domicil  of  choice,  should  not  in  like  manner 
be  inferred  from  his  citizenship  in  the  former  country.  And  on 
the  other  hand,  in  the  absence  of  the  probability  of  such  desire, 
there  is  no  reason  to  imply  it. 

§  67.  Situs  (or  Domicil)  of  Corporations.  —  There  is, 
strictly  speaking,  no  such  thing  as  the  "domicil"  of  a  cor- 
poration, for  it  can  have  no  permanent  home  in  the  ordinary 
and  usual  meaning  of  the  term.  But  a  corporation,  like  every 
other  thing,  act,  or  circumstance  known  to  the  law,  may  and 
must  have  a  situs. 

The  situs  of  a  corporation,  like   that  of  a  natural  person, 

native  domicil  reverts  as  soon  as  he  begins  to  execute  an  intention  of  return- 
ing ;  that  is,  from  the  time  he  puts  himself  in  motion  bona  fide  to  quit  the 
country  sine  animo  revertendi,  because  the  foreign  domicil  was  merely  adven- 
titious and  de  /ado,  and  prevails  only  while  actual  and  complete.  .  .  .  This 
principle  has  reference  to  a  national  domicil  in  its  enlarged  sense,  and  grows 
out  of  native  allegiance  or  citizenship.  It  has  no  application  when  the  ques- 
tion is  between  ^  native  and  acquired  domicil,  where  both  are  under  the  same 
national  jurisdiction." 

12  Sharpe  v.  Crispin,  L.  R.  1  P.  &  D.  611,  621 ;  Douglas  v.  Douglas,  L.  R. 
12  Eq.  617,  643;  Otis  v.  Boston,  12  Gush.  (Mass.)  44;  Greene  v.  Greene, 
11  Pick.  (Mass.)  409,  415. 

0 


130  SITUS  OP  CORPORATIONS.  §  67 

may  be  either  actual  or  legal.  It  is  the  legal  situs  with  which 
we  now  have  to  do,  which  is  generally  styled,  inaccurately,  the 
domicil  of  the  corporation.  It  is  not  such,  however,  in  the  full 
sense  of  the  term,  and  hence  the  rules  for  ascertaining  the 
so-called  domicil  of  a  corporation,  though  in  large  measure  analo- 
gous to  those  by  which  the  natural  person's  domicil  is  deter- 
mined, are  by  no  means  identical  with  them. 

Thfe^gpueral  mle.ig_well  settled  that^  corporation  js*^  domi- 
ciled "  or  has  its  legal  situalnthe  State  where  it  is  incorporated, 
not  where  its  stockholders  reside.^  ^^  it  does^  not  cFange  its 
domicil  by  merely  doing  business  elsewhere.  Its  actuaL_situs 
(through  its  agents)  -may_be__in_the  latter  ^l.acfi»-lmJLjt8  legal 
situs  is  unchanged.^ 

But  if  a  corporation  is  chartered  in  several  States  successively, 
as  sometimes  in  the  case  of  railroad  companies,  it  becomes  a 
citizen  of  each  of  those  States,  and  thus  may,  unlike  an  indi- 
vidual, have  several  domicils  at  the  same  time.' 

»  B.  &  0.  R.  R.  Co.  V.  Glenn,  28  Md.  287,  92  Am.  Dec.  688  ;  Boehme  r. 
Rail,  51  N.  J.  Eq.  574,  26  Atl.  832 ;  Chafee  v.  Bank,  71  Me.  514,  36  Am. 
Rep.  345,  351  ;  Chamberlain  v.  Chamberlain,  43  N.  Y.  424,  432 ;  Bank  of 
Augusta  V.  Earle,  13  Pet.  520,  586,  587 ;  B.  &  0,  R.  R.  Co.  v.  Koontz,  104 
U.  S.  10,  11 ;  Douglas  r.  Ins.  Co.,  138  N.  Y.  209,  33  N.  E.  938;  Boston  In> 
vestment  Co.  v.  Boston,  158  Mass.  461  ;  Railroad  Co.  v.  Barnhill,  91  Tenn. 
395,  19  S.  W.  21  ;  Memphis,  etc.  R.  Co.  v.  Alabama,  107  U.  S.  581. 

2  Faulkner  v.  Hyman,  142  Mass.  53,  55 ;  Chamberlain  v.  Chamberlain, 
43  N.  Y.  424,  432  ;  Chafee  v.  Bank,  71  Me.  614,  36  Am.  Rep.  345,  351 ;  Bank 
of  Augusta  V.  Earle,  13  Pet.  520,  586. 

»  See  Whart.  Confl.  L.  §  48  o  ;  B.  &  0.  R.  B.  Ca  ».  Glenn,  28  Md.  287, 
92  Am.  Dec.  688. 


§  68  8ITUS  OF  STATUS.  131 


Jlsu^iJl   S^aAl^ 


PAKT  m. 

SITUS  OF  STATUS. 

§  68.  Preliminary  —  Situs  of  Status  follows  the  Situs  of  the 
Person.  —  The  attributes  and  qualities  attached  to  a  person  by 
nppnttion  nf  IfiTTj  r^gardlf'Sfi  nl.his  own  wishes,  constitute  his 
statiLS  in  law.  As  ^  well  defined  in  a  leading  jflnglish  case :  * 
*  *  The  status  of  an  indiyidual.  used  in  a  le^al  sense,  is  the  legal 
relation  in  which  that  individna||  atanilH  to  |fhe  rest  of  the  coin- 
nmnity."  ' 

These  legal  relations  may  be  various.  One  who  is  under  age 
does  not  occupy  the  same  relation  to  the  rest  of  the  community 
as  one  who  is  an  adult:  the  relations  of  a  single  man  differ 
from  those  of  one  who  is  married;  one  who  is  competent  to 
transact  business  occupies  a  different  relation  from  one  who  is 
not ;  a  legitimate  or  adopted  child  from  one  who  is  not ;  a  ward 
from  one  who  is  not  under  guardianship ;  a  fiduciary  from  one 
who  is  acting  for  himself,  etc.  All  these  and  others  that  need 
not  be  enumerated  are  instances  of  status. 

It  is  natural  and  proper  that  these  personal  attributes  or 
qualities,  grouped  under  the  generic  term  status,  should  follow 
the  person  to  whom  they  are  attached,  and  should  in  the  main 
be  regulated  and  governed  by  the  same  law  that  governs  him. 
Indeed,  for  the  most  part,  it  is  through  these  qualities  and  at- 
tributes that  a  particular  law  can  be  said  to  govern  a  person  at 
all.  The  law  which  governs  the  person  is  in  general  the  law  of 
his  situs.     Hence  the  law  governing  the  status  of  the  person  is 

1  Niboyet  v.  Niboyet,  4  P.  D,  11. 

'  See  also  Ross  v.  Ross,  129  Mass.  243,  246,  37  Am.  Bep.  321 ;  Van  Matre 
V.  Sankey,  148  111.  356,  36  N.  E.  628  ;  Freeman's  Appeal,  68  Conn.  533, 
37  Atl.  4-20,  421  ;  De  La  Montanya  v.  De  La  Montanya,  112  Cal.  101,  32 
L.  R.  A.  82  ,  87,  53  Am.  St.  Rep.  165 


132  SITUS   OF  STATUS.  §  68 

the  law  of  his  situs.  The  law  of  the  person's  situs  then  is  ''the 
proper  law  "  controlling  the  status. 

But  we  have  seen  in  a  preceding  chapter*  that  when  a 
''proper  law  "  comes  to  be  enforced  in  another  State,  there  are 
certain  circumstances,  such  as  the  consequent  violation  of  the 
policy  of  the  forum  or  the  perpetration  of  injustice  upon  its 
people,  that  may  lead  the  courts  of  the  forum  to  substitute  the 
lex  fori  in  a  given  case  in  the  place  of  the  proper  law.  This  is 
exemplified  in  some  whole  groups  of  status,  as  in  the  case  of 
fiduciaries,*  where  the  application  of  the  lex  fori  is  the  rule 
rather  than  the  exception;  and  sometimes  in  other  cases  of 
status  where  the  exceptional  circumstances  arise. 

But  when  we  say  that  "the  proper  law  "  to  determine  status 
is  the  law  of  the  person's  situs,  we  must  bear  in  mind  that  the 
person's  situs  may  be  twofold.  He  may  have  an  actual  situs 
or  he  may  have  a  distinct  legal  situs  or  domicil ;  that  is,  his 
actual  situs  may  be  recognized  for  one  purpose,  and  his  legal 
situs  for  another,  and  the  two  need  not  coincide.' 

We  have  also  seen  that  the  actual  situs  of  a  person  is  looked 
to  in  those  matters  which  are  the  result  of  the  person's  activity 
and  voluntary  efforts,  for  in  respect  to  such  matters  the  recog- 
nition of  the  sovereignty  of  the  State  wherein  they  arise  de- 
mands that  its  law  should  govern  them,  and  to  the  operation  of 
that  law  the  party  has  voluntarily  and  deliberately  submitted 
himself.'  On  the  other  hand,  if  the  rights  or  liabilities  in  dis- 
pute have  been  conferred  upon  the  party,  not  by  his  own  volun- 
tary act,  but  as  a  result  of  the  operation  of  law,  if  they  are 
dependent  upon  the  law  of  the  person's  situs  at  all,  it  will  in 
general  be  the  legal,  not  the  actual,  situs  of  the  person,  that  will 
furnish  the  applicatory  law.'  We  shall  hereafter  have  occasion 
to  apply  these  principles  more  than  once ;  they  are  at  the  foun- 
dation of  many  of  the  problems  that  present  themselves. 

With  respect  to  the  particular  instance,  now  under  consider- 
ation, of  the  application  of  the  law  of  the  person's  situs,  namely, 
the  status  of  the  individual,  it  may  be  said  that  it  belongs  in  the 

«  Chapter  H.  *  Post,  Chapter  IX. 

8  S«e  ante,  §  18.  «  See  ante,  §§  17,  18. 

T  See  ante,  §§  17,  18 


§  68  SITUS   OP   STATUS.  133 

main  to  the  second  class  of  cases  above  mentioned,  that  is,  mat- 
ters arising  by  operation  of  law  without  the  active  intervention 
of  the  party.  Hence,  the  general  rule  of  private  international 
law  is  that  questions  of  status  are  to  be  determined  by  the  law 
of  the  legal  situs  or  domicil  (lex  domicilii)  of  the  party  whose 
status  is  in  dispute.* 

But  this  is  not  universally  true,  and  under  some  circumstances 
"the  proper  law  "  to  determine  a  status  may  be  the  law  of  the 
person's  actual  situs,'  while  in  other  cases  the  lex  fori  may  be 
substituted  for  the  proper  law  altogether. 

The  status  may  be  considered  under  four  main  groups,  to  each 
of  which  one  or  more  chapters  will  be  devoted.  These  are: 
(1)  Personal  capacity;  (2)  The  marriage  status;  (3)  The  status 
of  legitimacy  and  adoption  ;  and  (4)  The  status  of  fiduciaries. 

8  Lamar  v.  Micou,  112  U.  S.  452  ;  Ross  v.  Ross,  129  Mass.  243,  246,  37 
Am.  Kep.  321 ;  Watkins  v.  Watkins,  135  Mass.  83,  84 ;  Adams  v.  Adams, 
154  Mass.  290 ;  Kinney  v.  Com.,  30  Gratt.  (Va.)  858  ;  Miller  v.  Campbell, 
140  N.  Y.  457,  460,  35  N.  E.  651 ;  Miller  v.  Miller,  91  N.  Y.  315  ;  Moultrie 
17.  Hunt,  23  N.  Y.  394,  403-404  ;  "Woodward  v.  Woodward,  87  Tenn.  644,  11 
S.  W.  892,  893  ;  Armstrong  w.  Best,  112  N.  C.  59,  17  S.  E.  14  ;  State  v.  Ken- 
nedy, 76  N.  G  251,  22  Am.  Rep.  683  ;  People  v.  Dawell,  25  Mich.  247,  12 
Am.  Rep.  260 ;  Blythe  v.  Ayres,  96  Cal.  532,  19  L.  R.  A.  40,  31  Pac.  915 ; 
Gray  v.  Holmes,  57  Kan.  217,  33  L.  R.  A.  207,  45  Pac.  596  ;  Melvin  v.  Martin, 
18  R.  I.  650,  30  Atl.  467;  Van  Fossen  v.  State,  37  Ohio  St.  317,  41  Am.  Rep. 
507,  508  ;  Jones  v.  Jones,  67  Miss.  195,  6  So.  712  ;  Gregory  v.  Gregory,  78 
Me.  187,  57  Am.  Rep.  792  ;  Prosser  v.  Warner,  47  Vt.  667,  19  Am.  Rep.  132, 
134  ;  Firth  v.  Firth,  50  N.  J.  Eq.  137,  24  Atl.  916 ;  Birtwhistle  v.  Vardill. 
7  CI.  &  F.  895  ;  Skottowe  v.  Young,  L.  P^.  11  Eq.  474 ;  Price  r.  Dewhurst, 
S  Sim.  279. 

»  Post,  §§  72,  78. 


184         SBVEEAL  SOBTS  OF  CAPACITY.         §  69 


CHAPTER  V. 

STATUS  OF  PERSONAL  CAPACITY. 

§  69.    Capacity  in  General  —  Several  Sorts  of  Capacity.  ^ 

In  general,  the  capacity  or  incapacity  of  a  person  to  take  part 
in  a  particular  transaction  is  not  an  active  but  a  passive  element 
of  the  transaction,  one  imposed  by  law,  and  independent  of  the 
will  of  the  parties. 

Theoretically  therefore,  upon  principles  just  examined,  the 
proper  law  governing  the  capacity  or  incapacity  of  the  person 
is  the  law  of  the  person's  legal  situs  or  domicil  (lex  domicilii), 
not  the  law  of  his  actual  situs.  And  in  general,  as  we  shall  see, 
this  is  the  rule.^ 

But  when  the  matter  with  respect  to  which  the  party's  capacity 
is  questioned  is  the  result  of  a  voluntary  and  deliberate  act  on 
the  part  of  the  person,  for  example,  the  making  of  a  contract  in 
a  particular  State  (other  than  his  domicil),  a  serious  question 
arises  whether  his  capacity  to  enter  into  such  contract  is  to  be 
governed  by  the  law  of  his  legal  situs  (lex  domicilii)  or  by  the 
law  of  his  actual  situs  (the  place  where  the  contract  is  entered 
into).  The  point,  being  one  upon  which  the  courts  are  much 
confused,  will  be  discussed  hereafter.^ 

As  illustrating  this  distinction,  in  respect  to  capacity,  between 
the  active  participation  of  a  party  in  a  given  transaction  and 
such  participation  as  is  imposed  upon  him  by  the  law,  it  will 
not  be  amiss  to  quote  the  language  of  a  leading  Massachusetts 
decision :  • 

"The  capacity  or  qualification  to  inherit  or  succeed  to  prop- 
erty, which  is  an  incident  of  the  status  or  condition,  requiring 
no   action  to  give  it   effect,  is  to  be  distinguished  from  the 

»  Post,  5§  70,  71  et  seq.  3  Post,  §§  72,  73. 

•  Ross  V.  Ross,  129  Mass.  243,  246,  37  Am.  Rep.  321,  Gray,  J. 


§  69         SEVERAL  SORTS  OF  CAPACITY.         135 

capacity  or  competency  to  enter  into  contracts  that  confer  rights 
upon  others.  A  capacity  to  take  and  to  have  differs  from  a 
capacity  to  do  and  contract;  in  short,  a  capacity  of  holding, 
from  a  capacity  to  act." 

It  will  be  seen  that  when  the  actual  situs  and  the  legal  situs 
(or  domicil)  of  the  party  coincide,  that  is,  when  the  act  or  mat- 
ter in  question  arises  in  the  domicil,  the  lex  domicilii  will, 
under  all  circumstances,  be  the  proper  law  to  determine  the 
party's  capacity,  no  matter  where  the  question  may  arise.  It  is 
true  that  the  proper  law  may  be  substituted  by  the  lex  fori,  but 
only  in  the  exceptional  cases  heretofore  discussed.* 

If  the  act  is  a  voluntary  one  (e.  g.  making  a  contract)  per- 
formed in  a  third  State,  the  question  arising  in  a  State  other 
thoM  the  party's  domicil,  the  courts  of  such  State  will  usually 
hold  that  the  law  of  the  place  where  the  contract  is  entered  into, 
or  other  act  is  done,  that  is,  the  law  of  the  actual  situs  of  the 
person  at  that  time,  will  govern  his  capacity  to  do  the  act.* 

But  if,  though  the  act  be  voluntary  and  performed  in  a  third 
State,  the  question  is  raised  in  the  party's  domicil  with  respect 
to  his  capacity  or  incapacity  to  do  the  act,  there  is  great  differ- 
ence of  opinion,  or  at  least  apparent  difference  of  opinion,  as  to 
the  law  which  should  govern.' 

The  status  of  personal  capacity  is  to  be  examined,  according 
to  the  character  of  the  transaction,  in  different  aspects.  The 
primary  distinction  is  that  already  noted  between  cases  of 
involuntary  transactions  (if  the  expression  may  be  used)  and 
those  which  are  the  result  of  voluntary  action  by  the  party. 
We  will  consider  two  instances  of  capacity  under  each  of  these 
heads. 

The  first  instance  of  capacity  under  the  head  of  involuntary 
transactions  is  that  of  the  capacity  to  make  a  will  and  to  be  a 
beneficiary  thereunder.  At  first  glance,  the  making  of  a  will 
would  seem  to  be  a  voluntary  act  of  the  testator,  but  a  moment's 
reflection  will  show  that  though  the  actual  writing  of  a  will  is  a 

<  Chapter  II.  6  Post,  §§  72,  73. 

•  Post,  §§  72,  73.  The  discrepancy  is  due  for  the  most  part  to  the  diflFer- 
ent  conceptions  of  the  various  courts  as  to  the  importance  to  be  attached  to 
the  policy  of  the  forum. 


136  TESTAMENTARY   CAPACITY.  §  70 

voluntary  act  on  the  part  of  the  testator,  it  is  dependent  for  its 
effect  upon  his  death,  which  is  involuntary.  It  is  therefore 
to  be  classed  under  this  head.' 

The  second  instance  of  capacity  in  involuntary  transactions 
may  be  designated  business  capacity  in  general  (exclusive  of 
contracts  and  other  voluntary  acts).  Under  this  head  are 
grouped  all  those  cases  in  which  the  abstract  question  arises 
whether  the  party  is  a  competent  agent,  but  in  which  he  does 
no  voluntary  and  deliberate  act.' 

Under  the  head  of  voluntary  transactions,  the  first  instance 
of  capacity  will  arise  in  respect  to  the  making  of  contracts  in 
general,  and  the  second  with  respect  to  capacity  to  enter  into 
the  contract  of  marriage  in  particular.'  The  *'  proper  law  "  to 
regulate  those  instances  of  capacity  belonging  to  the  first  class 
is  the  law  of  the  party's  legal  situs  or  domicil;  while  capacities 
of  the  second  class  are  controlled  by  the  law  of  the  party's 
actual  situs  at  the  time  of  the  transaction,  subject  to  modifica- 
tions which  will  be  discussed  hereafter. 

§  70.  Testamentary  Capacity.  —  In  respect  to  the  capacity 
to  make  a  will,  a  distinction,  already  adverted  to,  must  be  made 
between  wills  of  lands  and  wills  of  personal  property.  In  re- 
spect of  wills  of  lands,  the  testamentary  capacity  of  the  testator 
is  one  of  the  steps  in  the  chain  of  title,  all  of  which  are  to  be 
regulated  by  the  law  of  the  place  where  the  land  is  situated. 
Hence,  it  is  well  settled  that  the  lex  situs  of  the  land  governs 
the  capacity  to  devise,  as  well  as  the  formal  and  substantial 
validity  of  the  will.^ 

But  in  the  case  of  a  will  of  personalty  the  rule  is  otherwise, 
the  legal  situs  of  personal  or  movable  property  being  with  the 
person  of  the  owner.  Hence  the  general  rule  of  private  inter- 
national law  is  that  the  law  of  the  owner's  situs  shall  deter- 
mine his  capacity  to  bequeath  it;  and  since  the  will  takes  effect 

»  See  post,  §§  70,  142.  «  Post,  §  71. 

»  Post,  §§  72,  73. 

1  Ante,  §  11 ;  Story,  Confl.  L.  §  474 ;  Boss  r.  Ross,  129  Mass.  243,  246, 
37  Am.  Rep.  321 ;  Williams  v.  Saunders,  5  Coldw.  (Tenn.)  60,  61,  70;  Car- 
penter V.  Bell,  96  Tenn.  294,  34  S.  W.  209 ;  Frazier  v.  Boggs,  37  Fla.  307, 
20  So.  245. 


§  70  TESTAMENTARY   CAPACITY.  137 

by  the  death  of  the  testator  (an  involuntary  act)  it  is  the  law 
of  the  testator's  legal  situs  (or  domicil)  at  the  time  of  his 
death  that  will  govern.  That  the  lex  domicilii  of  the  testator 
is  the  proper  law  to  govern  testamentary  capacity  in  case  of 
personalty  is  settled  beyond  dispute." 

It  is  not  always  easy  however  to  determine  when  a  question 
is  really  one  of  testamentary  capacity.  Because  the  law  of  a 
State  prohibits  its  citizens  to  make  particular  testamentary  dis- 
positions, it  does  not  follow  that  the  prohibition  is  against  their 
testamentary  capacity.  In  order  to  create  a  true  testamentary 
incapacity,  the  policy  of  the  prohibiting  law  must  be  directed 
against  the  right  of  the  testator  to  dispose  of  his  property,  not 
against  some  particular  form  of  disposition  he  may  desire  to 
make,  nor  against  the  right  of  his  beneficiary  to  hold  the  prop- 
erty bequeathed. 

Thus,  a  law  prohibiting  a  person  under  legal  age  to  make 
a  will  creates  a  testamentary  incapacity;  or  a  law  prohibiting 
married  women  from  bequeathing  their  property,  whether  ap- 
plying to  all  or  only  part  of  their  possessions.  So  also,  a  law 
providing  that  no  will  shall  be  valid,  unless  executed  a  certain 
time  before  the  testator's  death ;  or  a  law  providing  that  no  will 
creating  a  charitable  trust  shall  be  valid  if  executed  within  a 
named  time  before  the  death  of  the  testator ;  or  a  provision  that 
a  testator  shall  not  give  more  than  a  certain  proportion  of  his 
estate  to  charities.  The  policy  of  all  these  provisions  is  to 
prevent  the  testator  from  making  indiscreet  dispositions,  to  the 
disinheritance  of  his  family.  They  are  aimed  to  deprive  him  of 
a  discretion  which,  if  given  full  sway,  might  result  in  injustice 
to  those  dependent  upon  him.  They  create  a  true  testamentary 
incapacity.  The  policy  of  such  laws  is  applicable  to  all  persons 
who  are  subject  to  them,  to  all  persons  domiciled  in  that  State, 

2  Koberts'  Will,  8  Pai.  Ch.  (N.  Y.)  519;  Chamberlain  r.  Chamberlain, 
43  N.  Y.  424,  432-433  ;  Kerr  r.  Dougherty,  79  N.  Y.  327,  341  ;  Cross  v.  Trust 
Co.,  131  N.  Y.  330,  340  ;  Russell  v.  Hooker,  67  Conn.  24,  34  Atl.  711,  712 ; 
Ford  V.  Ford,  70  Wis.  19,  33  N.  W,  188,  194  ;  Sickles  v.  New  Orleans,  52 
U.  S.  App.  147,  80  Fed.  868,  873  ;  Montgomery  v.  Millikin,  5  Sm.  &  M. 
(Miss.)  151,  43  Am.  Dec.  507  ;  Cameron  v.  Watson,  40  Miss.  191,  207;  Wil- 
liams V.  Saunders,  5  Coldw.  (Tenn.)  60 


138  TESTAMENTARY   CAPACITY.  §  70 

regardless  of  their  actual  situs,  or  the  actual  situs  of  the  prop- 
erty bequeathed.  Wherever  the  latter  may  be,  it  must  for  this 
purpose  be  regarded  as  helping  to  make  up  the  aggregate  wealth 
of  the  State  whose  citizen  the  owner  is.  The  strict  lex  scripta 
of  the  testator's  domicil  therefore  will  govern  testamentary 
incapacities  of  this  character.* 

On  the  other  hand,  a  law  is  not  a  restriction  upon  testamen- 
tary capacity,  which  avoids  a  will  creating  a  trust  to  endure 
longer  than  lives  in  being,  or  other  perpetuity;  or  which  avoids 
charitable  trusts,  or  other  vague  and  indefinite  dispositions. 
These  prohibitions  are  not  for  the  protection  of  the  testator's 
estate  from  his  improvident  dispositions,  but  for  the  general 
welfare  of  the  State,  or  because  of  the  incapacity  of  the  courts 
to  enforce  the  provisions.  The  State  passing  such  laws  is  only 
concerned  with  their  enforcement  when  the  property  is  designed 
under  the  will  to  be  held  in  perpetuity  within  its  limits^  or 
where  its  courts  are  to  enforce  the  vague  and  indefinite  trusts 
created  by  the  will.  This  policy  is  not  affected  by  the  resi- 
dence or  the  non-residence  of  the  testator,  but  only  by  the 
presence  or  non-presence  of  the  property  disposed  of.  If  the  per- 
petuities or  indefinite  trusts  are  to  take  effect  there,  the  policy 
of  these  laws  is  violated,  and  the  domicil  of  the  testator  and  its 
laws  are  not  of  material  importance.* 

Another  class  of  these  prohibitory  laws  relate  to  the  capacity 
of  the  beneficiary  to  take  the  property  bequeathed.  These  laws 
also  are  to  be  distinguished  from  those  which  place  a  restriction 
upon  the  capacity  of  the  testator  to  dispose  of  his  property. 
The  purpose  of  such  laws  is  not  to  restrain  the  testator  from 
improvident  dispositions,  but  to  subserve  a  general  policy,  which 
the  welfare  of  the  State  as  a  whole  requires  should  be  carried 
out.  To  this  class  belong  prohibitions  upon  a  corporation 
to  be  a  legatee,  or  to  hold  more  than  a  certain  amount  of  the 
property  bequeathed  to  it,  etc.  The  purpose  is  to  impose  a 
check  upon  the  aggrandizement  of  the  corporation  and  for  the 
protection  of  the  State  against  its  undue  influence  and  power. 

»  See  Healy  v.  Reed,  153  Mass.  197,  200  ;  Montgomery  v.  Millikin,  5  Sm. 
k  M.  (Miss.)  151,  43  Am.  Dec.  507.     See  post,  §  144. 
♦  See  Healy  v.  Beed,  163  Mass.  197,  200  ;  post,  §  144. 


§  70  TESTAMENTARY   CAPACITY.  139 

Such  is  the  policy  of  statutes  of  mortmain.  In  such  a  case, 
it  is  evident  that  the  State  enacting  such  law  is  not  interested 
in  enforcing  it  if  the  corporation  or  other  heneficiary  thus  pro- 
hibited to  take  is  not  within  its  borders;  and  on  the  other 
hand,  if  such  beneficiary  is  within  its  limits,  the  policy  of  the 
law  applies,  no  matter  where  the  testator's  domicil  may  be  or 
what  may  be  its  laws.  The  question  here  involved  is  not 
the  testamentary  capacity  of  the  testator,  but  the  capacity  of 
the  legatee  to  take,  and  that  capacity  should  be  regulated  by  the 
law  of  the  beneficiary^ s  domicil,  just  as  much  as  the  testator's 
capacity  is  to  be  controlled  by  the  law  of  his  domicil.* 

Thus,  in  Chamberlain  v.  Chamberlain,*  a  leading  New  York 
case,  a  testator,  domiciled  in  New  York,  bequeathed  property 
to  a  Pennsylvania  corporation  for  educational  purposes.  If  the 
legatee  had  resided  in  New  York  and  the  property  was  to  have 
remained  there,  the  disposition  would  have  contravened  the 
New  York  law  placing  restrictions  upon  the  capacity  of  cor- 
porations to  take  as  legatees.  But  inasmuch  as  the  corporation 
legatee  was  capable  of  taking  the  legacy  under  the  law  of  Penn- 
sylvania (its  situs),  the  court  construed  the  New  York  statute 
not  to  apply.  In  the  course  of  its  opinion  the  court  says : 
"  It  is  no  part  of  the  policy  of  New  York  to  interdict  per- 
petuities or  gifts  in  mortmain  in  Pennsylvania." 

On  the  other  hand,  in  another  New  York  case,'  a  testator 
domiciled  in  New  York  bequeathed  a  legacy  to  a  Pennsylvania 
corporation  for  charitable  purposes,  and  died  within  a  month 
after  executing  his  will.  The  law  of  New  York  provided  that 
no  devise  or  bequest  to  a  corporation  by  one  leaving  a  wife, 
child,  or  parent  should  be  valid  in  any  will  not  made  and 
executed  at  least  two  months  before  the  testator's  death.  The 
law  of  Pennsylvania  was  the  same.     It  was  held  that  the  bequest 

'  Chamberlain  v.  Chamberlain,  43  N.  Y.  424  ;  Kerr  r.  Dougherty,  79  N.  Y. 
327;  Healyr.  Reed,  153  Mass.  197,  200;  Sickles  v.  New  Orleans,  52  U.  S. 
App.  147,  80  Fed.  868;  Fellows  v.  Miner,  119  Mass.  541  ;  Sohier  w.  Burr, 
127  Mass.  221 ;  Hope  r.  Brewer,  136  K.  Y.  126.  See  Cameron  v.  Watson, 
40  Miss.  191.     See  Vansant  v.  Roberts,  3  Md.  119;  post,  §  144. 

«  43  N.  Y.  424. 

'  Kerr  v.  Dougherty,  79  N.  Y.  327,  341. 


140  TESTAMENTARY   CAPACITY.  §  70 

was  invalid.  This  decision  was  clearly  correct,  but  it  is  sub- 
mitted that  the  court  erred  in  following  the  Pennsylvania  law 
rather  than  that  of  Hew  York  in  reaching  its  conclusion.  The 
result  was  the  same,  for  the  two  laws  were  similar;  but  the  pro- 
hibition of  the  New  York  law  was  directed  in  this  case  against 
the  capacity  of  the  testator,  not  against  the  capacity  of  the 
legatee,  and  should  therefore  have  furnished  the  guide,  since 
New  York  was  the  testator's  domicil.  Mr.  Wharton's  criticism 
upon  this  decision  is  well  founded.* 

Following  the  same  line  of  reasoning,  it  would  seem  that  if 
the  question  should  arise,  not  in  the  testator's  domicil  but  in 
the  State  where  the  property  is  or  the  legatee  resides,  the  courts 
of  the  forum  should  be  governed  by  the  lex  domicilii  of  the  tes- 
tator, it  is  true,  but  should  construe  that  law  according  to  the 
policy  indicated  thereby.  K  intended  as  a  restriction  upon 
testamentary  capacity,  the  strict  lex  scripta  of  the  testator's 
domicil  should  be  applied.  If  the  lex  domicilii  is  intended  to 
lay  down  rules  governing  the  mode  in  which  property  in  the 
domicil  should  be  held  or  enjoyed,  as  in  case  of  statutes  pro- 
hibiting gifts  in  perpetuity;  or  rules  prescribing  what  persons 
under  its  jurisdiction  may  receive  bequests,  as  in  case  of  statutes 
of  mortmain ;  or  rules  governing  its  courts  in  the  administration 
of  trusts,  as  in  case  of  provisions  that  vague  and  indefinite  trusts 
shall  not  be  enforced,  —  in  all  such  'cases  the  policy  of  the  lex 
domicilii  indicated  by  such  laws  is  confined  to  the  limits  of  the 
domicil  itself  and  is  not  to  be  construed  as  applying  to  property 
to  be  enjoyed  in  other  States,  to  legatees  domiciled  elsewhere,  or 
to  trusts  to  be  administered  by  the  courts  of  other  States.® 

In  those  cases  in  which  the  law  of  the  testator's  domicil  is  to 
be  applied,  it  must  be  observed  that  it  is  the  domicil  possessed 
by  the  testator  at  the  time  of  his  death  that  furnishes  the  proper 

*  Wbart.  Confl.  L.  §  577.  In  a  similar  case  in  Massachusetts  it  was  held 
that  the  lex  domicilii  of  the  testator,  not  of  the  legatee,  should  govern.  Healy 
V.  Reed,  153  Mass.  197.  See  Mollis  v.  Seminary,  95  N.  Y.  166;  Curtis  r, 
Button,  14  Ves.  537. 

»  See  Chamberlain  v.  Chamberlain,  43  N.  Y.  424  ;  Healy  v.  Reed,  153  Mass. 
197 ;  Dammert  v.  Oshorn,  140  N.  Y.  30 ;  Cross  v.  Trust  Co.,  131  N.  Y.  330 
In  the  last  case  the  disposition  was  opposed  to  the  policy  of  both  States. 


§  71  BUSINESS  CAPACITY  IN  GENERAL.  141 

law.  If  he  makes  his  will  when  domiciled  in  one  State,  and 
then  afterwards  removes  to  another  where  he  dies,  it  is  the  law 
of  the  latter  State,  not  that  of  the  former,  which  determines  his 
testamentary  capacity." 

Testamentary  capacity  under  the  exercise  of  a  power  of  ap- 
pointment  depends  upon  different  principles,  and  will  be  con* 
sidered  hereafter.^^ 

§  71.  Business  Capacity  in  general.  —  By  "  business  ca- 
pacity," as  here  used,  is  meant  a  general  capacity  for  business 
transactions,  exclusive  of  voluntary  acts  of  the  party,  such 
as  entering  into  contracts,  which  will  be  discussed  in  the  fol- 
lowing sections. 

The  period  of  wardship,  the  age  of  majority,  the  effect  of 
settlements  between  guardian  and  ward,  the  ability  of  a  mar- 
ried woman  to  be  a  trustee,  etc.,  are  matters  that  do  not  involve 
the  idea  of  a  voluntary  and  deliberate  entrance  into  a  transac- 
tion, but  are  more  or  less  matters  of  law,  rather  than  of  active 
consent  or  contract.  All  these  and  others  of  a  like  kind  may 
be  grouped  under  the  general  head  of  business  capacity. 

It  is  the  established  general  rule  that  this  sort  of  capacity  is 
governed  by  the  law  of  the  legal  situs  (or  domicil)  of  the  party 
whose  capacity  is  in  question.*  The  lex  domicilii  is  the  *  *  proper 
law,"  but  as  in  other  instances  the  proper  law  is  liable  to  be 
substituted  under  certain  circumstances  by  the  lex  fori  in  the 
exceptional  cases  already  mentioned  in  the  second  chapter. 

Thus,  in  Woodward  v.  Woodward,'  a  ward  domiciled  in 
Louisiana  and  being  of  full  age  there  (fixed  at  eighteen),  though 

W  Story,  Confl.  L.  §  473 ;  Jac.  Dom.  §  43  ;  Whart.  Confl.  L.  §  570.  See 
Moultrie  V.  Hunt,  23  N.  Y.  394  ;  White  v.  Howard,  46  N.  Y.  144,  This  is 
eminently  reasonable  since  a  will  takes  eflfect  by  the  death  of  the  testator,  not 
by  its  execution. 

"  See  post,  §  150. 

1  Woodward  v.  Woodward,  87  Tenn.  644,  11  S.  W.  892  ;  Hiestaud  v. 
Kuns,  8  Blackf.  (Ind.)  345,  46  Am.  Dec.  481 ;  Barrera  r.  Alpuente,  6  Mart. 
N.  s.  (La.)  69,  17  Am.  Dec.  179  ;  Schluter  r.  Bank,  117  N,  Y.  125,  22  N.  E. 
572  ;  Lamar  v.  Micou,  112  U.  S.  452  ;  Kohn's  Estate,  1  Pars.Eq.  Ca«.  (Penn.| 
399  •,  Freeman's  Appeal,  68  Conn.  533,  37  Atl.  420  ;  In  re  Helleman's  Will, 
L.  R.  2  Eq.  363  ;  In  re  Da  Cunha,  1  Hagg.  Eccl.  237. 
»  87  Tenn.  644,  11  S.  W.  892. 


142  BUSINESS   CAPACITY  IN  GBNBRAL.  §  71 

under  age  in  Tennessee,  sued  her  guardian  in  Tennessee,  where 
he  was  appointed,  to  compel  him  to  turn  over  to  her  her  person- 
alty located  there.  It  was  held  that  she  was  of  age  and  entitled 
to  make  this  demand,  though  there  was  a  Tennessee  statute  pro- 
viding that  a  ward  might  make  such  demand  of  the  guardian 
upon  attaining  the  age  of  "  twenty-one,"  this  phrase  being  con- 
strued by  the  court  as  equivalent  to  ''full  age." 

In  Hiestand  v.  Kuns,'  a  guardian  removed  with  his  ward  (a 
niece)  nine  years  old  from  Ohio,  where  her  parents  had  lived 
and  died,  to  Indiana.  By  the  law  of  Ohio  she  became  of  age  at 
eighteen ;  by  the  law  of  Indiana  at  twenty-one.  Upon  attain- 
ing the  age  of  eighteen  she  gave  her  guardian  a  power  of  attor- 
ney to  sell  her  property,  and  he  made  a  settlement  with  her 
which  he  alleged  was  a  final  one.  The  Indiana  court  held  that 
her  capacity  to  come  to  a  settlement  with  her  guardian  de- 
pended upon  the  law  of  her  domicil ;  that  her  Ohio  domicil  was 
unchanged  by  her  removal  to  Indiana  with  her  guardian ;  but 
that  when  she  became  eighteen,  she  became  under  Ohio  law 
competent  to  select  her  own  domicil;  that  she  did  select  In- 
diana; and  that  the  law  of  her  new  domicil  straightway  threw 
her  back  into  her  old  status  of  minority  and  dependence  until 
she  should  become  twenty-one.  The  court  therefore  held  her, 
under  the  law  of  Indiana  (her  newly  acquired  domicil),  incom- 
petent to  make  a  final  settlement  with  her  guardian. 

In  Schluter  v.  Bank,*  a  married  woman  domiciled  in  New 
York  there  became  a  trustee  of  certain  funds  deposited  there. 
She  afterwards  became  domiciled  in  New  Jersey,  by  whose  law 
a  married  woman  was  incompetent  to  act  as  trustee.  Upon  the 
question  whether  she  remained  a  trustee  of  the  New  York  funds 
after  her  removal  to  New  Jerse\'^,  it  was  held  by  the  New  York 
court  that,  capacity  being  conferred  upon  her  at  tlie  time  of  the 
transaction  by  the  law  of  her  domicil  (New  York),  the  trans- 
action was  a  valid  one,  and  continued  to  be  so  notwithstanding 
her  subsequent  removal  to  New  Jersey.* 

8  8  Blackf.  (Ind.)  345,  46  Am.  Dec.  481. 
*  117  N.  Y.  125,  22  N.  E.  572. 

6  Here  the  married  woman's  former  domicil  was  also  the  forum.  If  the 
same  question  had  arisen  in  New  Jersey  or  in  a  third  State,  the  result  might 


§  71  BUSINESS   CAPACITY  IN  GENERAL.  143 

With  respect  to  the  law  governing  the  age  of  majority,  the 
time  at  which  an  infant  becomes  an  adult  for  legal  purposes,  all 
the  authorities  agree  that  the  lex  domicilii  of  the  party  is  the 
proper  law  to  determine  the  question.*  But  there  is  consider- 
able conflict  upon  the  question  whether  the  proper  law  is  the  law 
of  the  party's  domicil  of  origin  or  that  of  his  domicil  at  the  time 
he  is  alleged  to  have  attained  his  majority,  supposing  him  no 
longer  to  possess  his  original  domicil. 

The  weight  of  American  authority,  and,  it  may  be  added,  of 
reason,  is  in  favor  of  the  latter  domicil  as  furnishing  the  proper 
law.'  But  many  of  the  continental  jurists  incline  to  the  domicil 
of  origin,  on  the  ground  that  ''  each  State  or  nation  is  presumed 
to  be  best  capable  of  judging  from  the  physical  circumstances 
of  climate  or  otherwise  when  the  faculties  of  its  citizens  are 
morally  or  civilly  perfect  for  the  purposes  of  society."  ^ 

have  been  different,  since  a  capacity  conferred  by  one  State  upon  a  citizen  does 
not  usually  continue  after  the  party  becomes  domiciled  in  another  State, 
whose  law  does  not  confer  it,  except  in  cases  of  permanent  status,  such  as  the 
marriage  status,  legitimation,  and  others  of  a  similar  character. 

6  Story,  Confl.  L.  §  71  ;  Woodward  v.  Woodward,  87  Tenn.  644,  11  S.  W. 
892  ;  Hiestand  v.  Kuns,  8  Blackf.  (lud.)  345,  46  Am.  Dec.  481 ;  Barrera  v. 
Alpuente,  6  Mart.  N.  s.  (La.)  69,  17  Am.  Dec.  179. 

7  Woodward  i;.  Woodward,  87  Tenn.  644,  11  S.  W.  892  ;  Hiestand  v.  Kuns, 
8  Blackf.  (Ind.)  345,  46  Am.  Dec.  481. 

8  Story,  CJonfl.  L.  §  72  ;  Barrera  v.  Alpuente,  6  Mart.  N,  s.  (La.)  69, 
17  Am.  Dec.  179.  Possibly,  when  the  question  arises  in  the  courts  of  the 
original  domicil,  they  may  be  governed  by  their  own  law,  but,  except  to  pre- 
serve their  own  citizens  from  injustice,  it  is  difficult  to  see  any  adequate  reason 
for  such  a  course.  See  Story,  Confl.  L.  §  73 ;  Whart.  Confl.  L.  §  113.  In  Bar- 
rera V.  Alpuente,  supra,  the  plaintiff  sued  in  Louisiana,  and  was  nonsuited,  on 
the  ground  that  she  was  an  infant  and  incapacitated  under  the  laws  of  Louisi- 
ana from  suing  in  her  own  name.  She  was  twenty-three  years  old,  and  had 
her  domicil  of  origin  in  Louisiana.  In  1802,  when  she  was  born,  the  age  of 
majority  was  fixed  in  that  State  at  twenty-five.  In  1808,  the  Louisiana  law 
was  changed  so  as  to  make  twenty-one  the  age  of  majority.  The  plaintiff  had, 
some  years  prior  to  the  suit  (whether  before  or  after  1808  did  not  appear), 
become  domiciled  in  Spain,  whose  law  was  similar  to  the  earlier  law  of  Louisi- 
ana, and  she  was  domiciled  in  Spain  when  the  suit  was  brought.  Upon  her 
appeal,  the  court  held  that  the  time  at  which  she  attained  her  majority  was 
to  be  determined  by  the  law  of  her  domicil  of  origin  (Louisiana),  and  not  by 
the  law  of  her  present  domicil  (Spain),  and  refused  to  give  her  relief  because 


144  CAPACITY  TO  CONTBACT.  §  72 

But  an  important  distinction  is  to  be  made  between  the  law 
governing  the  age  at  which  a  person  reaches  maturity  and  the 
law  regulating  the  capacity  or  incapacity  of  one  admittedly  an 
infant.  It  is  one  thing  to  say  that  a  particular  law  shall  govern 
the  question  whether  one  is  an  infant  or  not,  and  a  very  differ- 
ent thing  to  say  that,  admitting  him  to  be  an  infant,  the  same 
law  must  govern  his  capacity  to  transact  business.  The  law  of 
his  domicil  is  the  proper  law  to  determine  whether  or  not  he  is 
legally  an  infant,  but  having  determined  that  he  is  an  infant 
that  law  withdraws  and  leaves  the  effect  of  his  infancy  upon 
his  capacity  to  transact  business  to  the  law  proper  for  determin- 
ing the  effect  of  his  infancy.  In  the  case  of  business  capacity 
in  general  —  involuntary  transactions  —  the  lex  domicilii  is 
still  the  proper  law  to  govern  the  effect  of  infancy;  but  with 
regard  to  voluntary  transactions,  as  we  shall  see  in  the  follow- 
ing sections,  the  lex  domicilii  is  not  the  proper  law  for  this 
purpose. 

§  72.  Voluntary  Transactions  —  Capacity  to  Contract.  — 
We  now  come  to  the  consideration  of  the  law  whereby  a  party's 
capacity  is  to  be  determined  in  those  cases  in  which,  by  volun- 
tarily entering  into  a  transaction  abroad,  he  deliberately  puts 
himself  in  a  position  to  work  an  injustice  upon  others  with 
whom  he  deals,  should  he  set  up  an  incapacity  created  by  the 
law  of  his  legal  situs  or  domicil  with  which  those  dealing  with 
him  at  his  actual  situs  in  a  foreign  country  cannot  be  supposed 
to  be  familiar.  Upon  the  question  as  to  the  proper  law  govern- 
ing the  party's  capacities  or  incapacities  in  such  cases,  there  is 
a  great  difference  of  opinion. 

It  may  be  regarded  as  certain  that  if  the  party  enters  into  a 
contract  in  the  State  of  his  domicil,  though  the  contract  is  to  be 
performed  elsewhere,  the  proper  law  governing  his  capacity  to 
enter  into  the  contract  is  the  lex  domicilii,  no  matter  where  the 
suit  may  be  brought.^ 

she  had  not  shown  whether  she  left  Louisiana  before  its  law  had  been  altered. 
This  decision  does  not,  it  is  believed,  lay  down  the  correct  rule. 

»  Hill  t>.  Bank,  45  N.  H.  300;  Bell  v.  Packard,  69  Me.  105,  31  Am.  Rep. 
251,  252  ;  Poison  v.  Stewart,  167  Mass.  211,  45  N.  E.  737  ;  Armstrong  r. 
Best,  112  N.  C.  69, 17  S.  K  14  ;  Wood  v.  Wheeler,  111  N.  C.  231,  16  S.  E. 


§  72  CAPACITY  TO  CONTEACT.  145 

But  if  the  contract  is  entered  into  in  a  State  other  than  the 
party's  domicil,  he  has  not  the  same  right  to  claim  the  protec- 
tion of  his  domiciliary  law.  He  has  voluntarily  entered  into 
another  State  and  has  there  made  an  agreement  with  persons 
who  are  relying  upon  the  law  under  which  he  is  acting.  To  that 
law  he  has  submitted  himself  when  he  makes  the  contract  there, 
and  a  just  comity  will  ordinarily  demand  that  the  sovereignty 
of  that  State  over  all  acts  done  there  should  be  respected  in  other 
States.  Every  element  of  a  contract  may  have  a  separate  situs 
of  its  own,  whose  law  will  govern  the  effect  of  that  element. 
The  making  of  the  contract  may  have  a  situs  separate  from  the 
performance  of  it  and  separate  from  the  consideration.  The  law 
of  the  place  of  the  making  will  determine  whether  a  contract 
has  been  validly  entered  into ;  the  law  of  the  place  of  perform- 
ance will  determine  whether  it  can  be  legally  performed  there; 
while  the  law  of  the  situs  of  the  consideration  will  determine 
the  legality  and  sufficiency  of  the  consideration.  These  are 
elementary  principles  governing  contracts  which  will  be  fully 
discussed  hereafter.^  If  a  party  has  not  the  legal  capacity,  he 
cannot  enter  into  a  valid  contract ;  if  he  has  the  capacity,  he 
may.  This  question  must  be  determined  at  the  time  he  enters 
into  the  contract,  not  when  he  comes  to  perform  it.  It  pertains 
therefore  to  the  making  of  the  contract,  and  hence  the  element 
of  capacity  must  be  given  the  same  situs  that  belongs  to  the 
making  of  the  contract. 

For  these  reasons,  the  general  principle  of  private  interna- 
tional law  is  that  the  capacity  of  the  party  to  make  a  contract, 
whether  executory  or  executed,  is  governed  by  the  law  of  the 
actual  (not  the  legal)  situs  of  the  contracting  party  at  the  time 
he  enters  into  the  contract;  or,  to  put  it  in  different  form,  by 
the  law  of  the  place  where  the  contract  is  entered  into.  This  is 
known  as  the  lex  loci  celebrationis  of  the  contract,  in  contra. 

418;  Hanover  Nat.  Bank  v.  Howell,  118  N.  C.  271,  23  S.  E.  1005,  1006  ; 
Taylor  v.  Sharp,  108  N.  C.  377,  13  S.  E.  138  ;  Robinson  v.  Queen,  87  Tenn. 
445,  11  S.  W.  38,  3  L.  R.  A.  214  ;  Kerr  v.  Urie,  86  Md.  72,  37  Atl.  789  ; 
Union  Bank  v.  Hartwell,  84  Ala.  379,  4  So.  156  ;  Freeman's  Appeal,  68  Conn. 
533,  37  Atl.  420,  See  Miller  v.  Campbell,  140  N.  Y.  457,  35  N,  E.  651. 
a  Post,  §§  167-179. 

10 


146  CAPACITY  TO   CONTRACT.  §  72 

distinction  to  the  lex  loci  solutionis,  or  the  law  of  the  place 
where  the  contract  is  to  be  performed.  The  proper  law  then  to 
determine  the  capacity  to  contract  is  the  lex  celebrationis  of  the 
contract.^ 

But  this  general  principle  is  subject  to  qualification  when  the 
domicil  of  the  party  is  the  forum.  Under  these  circumstances, 
upon  the  exceptional  ground  (already  discussed)  of  protection 
to  its  citizens  as  well  as  of  public  policy,  the  lex  fori  (which  will 
also  be  the  lex  domicilii)  will  be  sometimes  substituted  for  the 
proper  law.  It  is  believed  however  that  even  the  courts  of  the 
domicil  will  follow  the  lex  celebrationis  of  the  contract  in  de- 
termining the  capacity  of  its  citizen  to  enter  into  the  contract, 
except  where  the  incapacity  imposed  by  the  law  of  the  domicil 
is  general  or  total,  such  as  the  common  law  disabilities  of  cover- 
ture. Only  in  such  pronounced  instances  of  a  policy  of  protec- 
tion towards  its  citizens  who  are  non  sui  juris  will  the  courts  of 
the  domicil  enforce  their  own  laws. 

Hence,  if  the  law  of  the  domicil  and  forum  only  declares  a 
few  of  a  married  woman's  contracts  void,  and  suit  is  brought 
there  upon  a  contract  made  by  her  in  another  State  and  there 
valid,  which  is  one  of  those  declared  to  be  beyond  her  capacity 
by  her  domiciliary  law,  the  contract  will  still  be  enforced  against 

3  See  Milliken  v.  Pratt,  125  Mass.  374,  28  Am.  Rep.  241 ;  Ross  v.  Ross,  129 
Mass.  243,  246,  37  Am.  Rep.  321 ;  Bellr.  Packard,  69  Me.  105,  31  Am.  Rep.  251, 
253  ;  Campbell  v.  Cramptou,  2  Fed.  417,  421,  423  ;  Matthews  w.  Murchison,  17 
Fed.  760  ;  Saul  v.  His  Creditors,  5  Mart.  N.  s.  (La.)  569,  16  Am.  Dec.  212,  226  ; 
Wilder's  Succession,  22  La.  Ann.  219,  2  Am.  Rep.  721 ;  Pearl  u.  Hansbrough, 
9  Humph.  (Tenn.)  426 ;  Robinson  v.  Queen,  87  Tenn.  445,  11  S.  W.  38, 
3  L.  R.  A.  214  ;  Armstrong  v.  Best,  112  N.  C.  59,  17  S.  E.  14  ;  Wood  v. 
Wheeler,  111  N.  C.  231,  16  S.  E.  418,  419  ;  Taylor  v.  Sharp,  108  N.  C.  377, 
13  S.  E.  138,  139;  Freeman's  Appeal,  68  Conn.  533,  37  Atl.  420  ;  Dougherty 
V.  Snyder,  15  S.  &  R.  (Penn.)  84,  16  Am.  Dec.  520;  Baum  v.  Birchall,  150 
Penn.  St.  164,  24  Atl.  620.  As  was  said  in  a  well  considered  case:  "Upon 
principle,  no  reason  can  be  alleged  why  a  contract,  void  for  want  of  capacity 
of  the  party  at  the  place  where  it  is  made,  should  be  held  good  because  it  pro- 
vides that  it  shall  be  performed  elsewhere,  and  nothing  can  be  found  in  any 
adjudicated  case  or  text-book  to  support  such  a  conclusion.  It  is  a  solecism 
to  speak  of  that  transaction  as  a  contract,  which  cannot  bo  a  contract  because 
of  the  inability  of  the  parties  to  make  it  such."  Campbell  i;.  Crampton,  2  Fed. 
417,  423. 


§  72  CAPACITY   TO   CONTRACT.  147 

her  even  in  her  domicil.  The  protective  policy  of  the  domicil 
is  partial  only,  and  its  enforcement  of  less  importance  to  the 
community  than  the  general  policy  of  recognizing  the  binding 
effect  of  contracts  and  the  sovereignty  of  another  State  over  all 
matters  arising  within  its  jurisdiction.*  But  if  the  law  of  the 
domicil  (and  forum)  imposes  a  total  incapacity  to  contract  on 
the  part  of  its  married  women,  the  need  for  this  stringent  policy 
of  protection  cannot  he  removed  by  the  voluntary  act  of  the 
woman  in  making  her  contract  in  another  jurisdiction.  It  is 
against  just  these  voluntary  acts  that  the  policy  of  such  laws  is 
directed.  In  such  cases  therefore,  when  it  is  attempted  to  en- 
force the  woman's  contract  in  the  courts  of  her  domicil,  the  law 
of  the  forum  (and  domicil)  will  he  generally  substituted  for  the 
proper  law  (the  lex  celebrationis  of  the  contract),  upon  the 
ground  that  this  policy  of  protection  to  the  married  women  of 
the  State  is  too  important  a  policy  to  be  overridden  by  a  foreign 
law,  even  when  that  is  the  "  proper  law."  ® 

In  Milliken  v.  Pratt,®  a  leading  case,  a  married  woman  dom- 
iciled in  Massachusetts  made  a  contract  in  Maine  as  guarantor 
for  her  husband.  The  contract  was  valid  in  Maine,  but  void 
in 'Massachusetts,  whose  law,  while  permitting  a  married  woman 
to  contract  generally,  prohibited  her  from  entering  into  con- 
tracts as  surety  for  her  husband.  Suit  being  brought  against 
her  upon  the  contract  in  Massachusetts,  it  was  held  that  the 
contract  must  be  enforced,  notwithstanding  the  domicil iarj'  law. 
In  the  course  of  its  opinion,  the  court  said :  "It  is  possible  also 
that  in  a  State  where  the  common  law  prevailed  in  full  force,  by 
which  a  married  woman  was  deemed  incapable  of  binding  her- 
self by  any  contract  whatever,  it  might  be  inferred  that  such 

*  Milliken  v.  Pratt,  125  Mass.  374,  28  Am.  Rep.  241  ;  Bell  v.  Packard,  69 
Me.  105,  31  Am.  Rep.  251,  252. 

6  Armstrong  v.  Best,  112  N.  C.  59,  17  S.  C.  14;  Hanover  Nat.  Bank  v. 
Howell,  118  N.  C.  271,  23  S.  E.  1005,  1006 ;  Milliken  v.  Pratt,  125  Mass. 
374,  28  Am.  Rep.  241  ;  Freeman's  Appeal,  68  Conn.  533,  37  Atl.  420 ;  Case 
V.  Dodge,  18  R.  I.  661,  29  Atl.  785,  786;  Baum  v.  Birchall,  150  Peun.  St. 
164,  24  Atl.  620;  Johnston  v.  Gawtry,  11  Mo.  App.  322  ;  Bowles  v.  Field, 
78  Fed.  742,  743  ;  Robinson  v.  Queen,  87  Tenn.  445,  11  S.  W.  38,  3  L.  E.  A 
214. 

•  125  Mass.  374,  28  Am.  Rep.  241. 


148  CAPACITY  TO   CONTRACT.  §  72 

an  utter  incapacity,  lasting  throughout  the  joint  lives  of  hus- 
band and  wife,  must  be  considered  as  so  fixed  by  the  settled 
policy  of  the  State  for  the  protection  of  its  own  citizens  that  it 
could  not  be  held  hy  the  courts  of  that  State  to  yield  to  the  law 
of  another  State  in  which  she  might  undertake  to  contract." 

In  Armstrong  v.  Best,'  a  married  woman  domiciled  in  North 
Carolina  entered  into  a  contract  in  Maryland  which  was  valid 
there.  By  the  law  of  North  Carolina  the  married  woman  was 
under  the  general  common  law  disabilities,  and  was  totally  in- 
competent to  enter  into  contracts.  Suit  being  brought  thereon 
in  North  Carolina,  the  court  held  that  it  must  enforce  the  law 
of  North  Carolina  (the  law  of  the  domicil  and  forum)  rather 
than  the  law  of  Maryland  (the  lex  celebrationis  and  the  proper 
law).  The  court,  in  its  opinion,  thus  refers  to  Milliken  v.  Pratt 
in  speaking  of  the  necessity  for  sometimes  substituting  the  law 
of  the  forum  and  domicil:  **That  this  qualification  is  appli- 
cable to  cases  like  the  present  is  manifest,  not  only  by  reason 
and  necessity,  but  also  by  the  decisions  of  other  courts.  Even 
in  Milliken  v.  Pratt,  in  which  the  lex  loci  contractus  is  pushed 
to  the  extreme  limit,  it  is  suggested  that  where  the  incapacity 
of  a  married  woman  is  the  settled  policy  of  the  State  *  for  the 
protection  of  its  own  citizens,  it  could  not  be  held  by  the  courts 
of  that  State  to  yield  to  the  law  of  another  State,  in  which  she 
might  undertake  to  contract.'  " 

A  fortiori^  if  the  policy  of  protection  to  its  citizens  adopted 
by  the  law  of  the  domicil  and  forum  is  not  so  pronounced  as  to 
render  the  contract  void  at  all,  but  only  voidable,  the  proper 
law  (lex  celebrationis)  will  be  enforced  even  in  the  domiciliary 
courts. 

Thus  it  is  the  well  settled  rule  that  the  liability  of  an  infant 
upon  his  contracts  is  to  be  determined,  even  in  the  courts  of  his 
domicil,  by  the  lex  celebrationis  of  his  contract,  not  by  the  law 
of  the  domicil  and  forum.' 

7  112  N.  C.  59,  17  S.  E.  14. 

8  Male  V.  Roberts,  3  Esp.  163  ;  Thompson  v.  Ketcham,  8  Johns.  (N.  Y.) 
189;  Saul  r.  His  Creditors,  5  Mart.  N.  s.  (La.)  569,  16  Am.  Dec.  212,  226 ; 
Wilder's  Succession,  22  La.  Ann.  219,  2  Am.  Rep.  721,  724-725  ;  Milliken  ». 
Pratt,  125  Mass.  374,  28  Am.  Rep.  241.     See  Campbell  v.  Crampton,  2  Fed. 


§  73  CAPACITY  TO   MARRY.  149 

§  73.  Same  —  Capacity  to  Maury.  —  Notwithstanding  some 
strong  dicta  to  the  effect  that  the  ''proper  law"  to  determine 
the  capacity  to  marry  is  the  lex  domicilii  of  the  parties  at  the 
time  of  the  marriage/  the  contract  of  marriage  is  believed  to  be 
governed,  in  respect  to  the  parties'  capacity  to  enter  into  the 
contract,  by  substantially  the  same  principles  as  other  contracts. 

If  at  the  time  of  the  marriage  the  actual  and  legal  situs  of  the 
parties  coincide,  in  other  words  if  the  marriage  takes  place  in 
the  parties'  domicil,  the  law  of  the  domicil  will  govern  their 
capacity,  no  matter  where  the  question  arises.  In  such  case 
there  is  no  particular  foreign  element.  The  domicil  of  both  the 
parties  coincide  with  the  place  of  celebration  of  the  marriage. 
The  law  of  that  place  will  therefore  control  in  all  respects,  even 
when  the  marriage  is  called  in  question  elsewhere  as  being  con- 

417,  422.  Indeed,  it  can  hardly  be  said  with  accuracy  that  a  matter  which 
renders  a  contract  voidable  merely  is  a  matter  of  capacity  to  make  the  con- 
tract at  all.  On  the  contrary,  the  capacity  (of  an  infant,  for  example)  to 
enter  into  the  contract  is  conceded.  It  is  rather  in  the  nature  of  a  privilege 
accorded  to  him  to  disaffirm  the  contract  after  he  has  entered  into  it.  In  any 
event  however  the  privilege  attaches,  if  at  all,  at  the  time  he  enters  into  the 
contract,  so  that  the  conclusion  remains  undisturbed  that  the  situs  of  his 
privilege  is  the  locus  celebrationis  of  his  contract,  and  its  "proper  law,"  the 
lex  celebrationis. 

So  it  is  also  in  other  cases  where  the  contract  is  voidable  merely,  not  void. 
Thus  causes  existing  at  the  time  of  a  marriage  which  render  it  voidable  only, 
and  do  not  avoid  it  ipso  /ado,  can  hardly  be  called  cases  of  incapacity  to 
marry,  for  the  marriage  is  a  legal  marriage,  notwithstanding  the  existence  of 
these  defects,  unless  avoided  during  the  lifetime  of  the  parties.  Despite  the 
obstacles  interposed  by  the  law,  the  fact  remains  that  the  parties  are  capable 
of  entering  into  a  marriage  contract  that  the  law  may  recognize  as  legal  and 
valid.  Such  matters  go  to  the  validity  of  the  contract  itself,  rather  than  to 
the  capacity  of  the  parties  to  enter  into  the  contract.     See  post,  §  78. 

1  Brook  v.  Brook,  9  H.  L.  Cas.  193 ;  Shaw  r.  Gould,  L.  R.  3  H.  L.  83  ; 
Sottomayor  v.  De  Barros,  3  P.  D.  5,  7;  Udny  v.  Udny,  1  H.  L.  Sc.  441,  457; 
Kinney  v.  Com.,  30  Gratt.  (Va.)  858 ;  Greenhow  v.  James,  80  Va.  636  ;  State 
V.  Ross,  76  N.  C.  242,  22  Am.  Rep.  678  ;  State  v.  Kennedy,  76  N.  C.  251, 
22  Am.  Rep.  683  ;  Campbell  v.  Crampton,  2  Fed.  417.  See  Dicey,  Confl.  L. 
642  et  seq.  In  most  of  these  cases  the  domicil  was  the  forum.  But  see  Sotto- 
mayor r.  De  Barros,  supra,  where  it  was  held  that  a  marriage  in  England 
between  two  first  cousins  domiciled  in  Portugal,  whose  law  forbade  such  mar- 
riages, would  be  held  void  in  England,  though  the  English  law  did  not  pro* 
hibit  first  cousins  from  marr3ring. 


150  CAPACITY  TO  MARRY.  §  73 

trary  to  the  law  of  the  forum,  unless  it  be  contra  honos  mores, 
as  polygamous,  or  universally  incestuous.^ 

Thus,  in  State  v.  Ross,'  a  white  woman  residing  in  North  Caro- 
lina left  that  State  and  went  to  South  Carolina,  with  the  purpose 
of  there  marrying  and  living  with  a  negro  man  residing  in  the 
latter  State.  The  marriage  was  valid  in  South  Carolina,  but 
void  in  North  Carolina.  Some  time  after  the  marriage,  the 
parties  determined  to  remove  to  North  Carolina.  Being  in- 
dicted there  for  fornication  in  living  and  cohabiting  together 
without  being  lawfully  married,  they  pleaded  the  South  Caro- 
lina marriage.  The  court  held  it  a  good  defense,  since  both 
parties  were  domiciled  in  South  Carolina  when  the  marriage  was 
contracted. 

If  the  parties  are  domiciled  in  one  State  by  whose  law  they 
are  prohibited  to  marry,  but  the  marriage  occurs  in  another 
State  where  such  marriages  are  permitted,  and  the  validity  of 
the  marriage  is  impugned  in  the  latter  or  any  third  State,  the 
general  rule  is  that  the  lex  celebrationis,  not  the  lex  domicilii, 
will  govern,* 

But  if,  under  the  circumstances  last  stated,  the  validity  of  the 
-narriage  is  questioned  in  the  courts  of  the  domicil,  much  con- 
flict has  arisen  amongst  the  authorities  as  to  the  law  which  shall 
dominate. 

Many  of  the  decisions  hold  that  the  lex  celebrationis  must 
govern  the  capacity  of  the  parties  to  enter  into  the  contract,  as 
well  as  the  formal  validity  of  the  wedding  ceremony,^  no  matter 

2  State  V.  Ross,  76  N.  C.  242,  22  Am.  Rep.  678 ;  Harral  v.  Harral,  3& 
N.  J.  Eq.  379,  51  Am.  Rep.  17,  25  ;  West  Cambridge  v.  Lexington,  1  Pick. 
(Mass.)  506,  11  Am.  Dec.  231;  Sutton  v.  Warren,  10  Met.  (Mass.)  451. 
Polygamous  and  incestuous  marriages  are  always  void  in  Christian  countries, 
though  valid  where  contracted.     Post,  §  75. 

8  76  N.  C.  242,  22  Am.  Rep.  678. 

*  Story,  Confl.  L.  §§  79,  89  ;  Ross  v.  Ross,  129  Mass.  243,  247-248,  37 
Am.  Rep.  321;  Cummington  v.  Belchertown,  149  Mass.  223,  226,  21  N.  E. 
435 ;  Campbell  v.  Crampton,  2  Fed.  417,  424  ;  Dickson  v.  Dickson,  1  Yerg. 
(Tenn.)  110,  24  Am.  Dec.  444;  Roth  v.  Roth,  104  111.  35,  44  Am.  Rep.  81, 
82  ;  Succession  of  Hernandez,  46  La.  Ann.  962,  24  L.  R.  A.  831,  841-842. 
But  see  Sottomayor  p.  De  Barros,  3  P.  D.  .'^,  7.  , 

'  It  is  universally  conceded  that  the  forms  and  solemnities  of  the  wedding 


§  73  CAPACITY  TO   MARRY.  151 

how  opposed  to  the  policy  of  the  domicil  and  forum  a  marriage 
between  the  parties  may  be  (if  not  immoral),  preferring  before 
any  special  policy  of  the  domicil  the  general  policy  which  looks 
to  the  upholding  of  marriages  valid  where  contracted.*  And 
these  courts  hold  to  this  view  even  though  the  parties  have  con- 
tracted the  marriage  abroad  in  order  to  evade  the  domiciliary 
law.  Under  this  line  of  decisions,  nothing  but  a  statute  of  the 
domicil  explicitly  declaring  such  a  marriage  between  its  citizens 
void,  though  entered  into  abroad,  will  be  permitted  to  outweigh 
the  general  and  important  policy  of  upholding  marriages. 

Thus,  in  a  leading  Massachusetts  case,''  a  white  person  and  a 
negro,  resident  in  Massachusetts,  went  to  Rhode  Island  and 
were  there  married,  intending  to  evade  the  law  of  Massachusetts, 
which  invalidated  such  marriages.  They  then  returned  to  Mas- 
sachusetts. The  validity  of  the  marriage  being  called  in  ques- 
tion before  the  courts  of  Massachusetts  (the  domicil  and  forum), 
the  court  sustained  the  marriage,  inasmuch  as  it  was  valid  in 
Rhode  Island.  In  the  course  of  its  opinion,  the  court  said : 
"Motives  of  policy  may  likewise  be  admitted  into  the  consid- 
eration of  the  extent  to  which  this  exception  is  to  be  allowed  to 
operate.  If  without  any  restriction,  then  it  might  be  that 
incestuous  marriages  might  be  thus  contracted.  But  it  is  not 
to  be  inferred  from  a  toleration  of  marriages  which  are  pro- 
hibited merely  on  account  of  political  expediency,  that  others 
which  would  tend  to  outrage  principles  and  feelings  of  all  civil- 
ized nations  would  be  countenanced."  ' 

are  to  be  regulated  in  all  cases  by  the  law  of  the  situs  of  the  celebration  (lex 
celebrationis).     See  post,  §  77. 

^  Medway  V.  Needham,  16  Mass.  157,  6  Am.  Dec.  131 ;  Putnam  v.  Putnam, 
8  Pick.  (Mass.)  433  ;  Com.  v.  Lane,  113  Mass.  458,  18  Am.  Rep.  509  ;  Ross  ». 
Ross,  129  Mass.  243,  247-248,  37  Am.  Rep.  321  ;  Cummington  v.  Belcher- 
town,  149  Mass.  223,  226,  21  N.  E.  435  ;  Van  Voorhis  v.  Brintnall,  86  N.  Y. 
18,  25,  40  Am.  Rep.  505 ;  Thorp  v.  Thorp,  90  N.  Y.  602  ;  Moore  r.  Hegeman, 
92  N.  Y.  521,  44  Am.  Rep.  408;  Stevenson  v.  Gray,  17  B.  Mon.  (Ky.)  193. 

^  Medway  v.  Needham,  16  Mass.  157,  6  Am.  Dec.  131. 

8  But  matters  of  political  expediency  may  become  of  as  tremendous  im- 
portance as  matters  of  moral  expediency.  It  must  be  remembered  that  at  the 
date  of  this  decision  (1819)  there  were  (and  still  are)  comparatively  few  ne- 
groes in  Massachusetts,  and  the  policy  which  dictated  this  statute  had  ceased 
to  be  of  great  importance. 


152  CAPACITY  TO   MARRY.  §  73 

In  a  Kentucky  case,"  a  man  and  the  widow  of  his  deceased 
uncle,  while  domiciled  in  Kentucky,  where  they  were  prohibited 
from  marrying,  went  into  Tennessee,  where  no  such  prohibition 
existed,  and  were  there  married,  and  then  returned  to  Kentucky. 
The  court  of  the  domicil  pronounced  the  marriage  good. 

In  Van  Voorhis  v.  Brintnall,"  the  law  of  New  York  provided 
that,  upon  a  divorce  for  adultery,  the  court  might  decree  that 
the  guilty  party  should  not  marry  again  during  the  lifetime  of 
the  consort.  A  marriage  between  E  and  B  was  dissolved  there 
on  the  ground  of  B's  adultery,  the  parties  being  domiciled  in 
New  York;  and  the  court  ordered  that  B  should  not  marry 
during  E's  lifetime.  Thereafter  B  went  to  Connecticut,  E  be- 
ing still  alive,  and  there  married  I,  also  a  resident  of  New  York. 
B  and  I  went  to  Connecticut  for  the  purpose  of  evading  the  New 
York  law,  and  returned  to  New  York  on  the  day  of  the  marriage, 
which  was  valid  under  the  laws  of  Connecticut.  The  New  York 
court  held  that,  although  the  marriage  would  have  been  invalid 
if  celebrated  there,  it  must  be  considered  as  valid  in  New  York 
because  valid  where  it  was  celebrated,  and  that  the  issue  of  the 
marriage  were  therefore  legitimate  in  New  York,  and  entitled 
to  share  with  the  children  of  the  first  marriage  under  a  devise 
"to  the  issue  of  B." 

On  the  other  hand,  many  courts,  attaching  greater  weight  to 
the  particular  domestic  policy  than  to  the  general  policy  which 
seeks  to  uphold  marriages  bona  fide  entered  into  between  the 
parties,  will  be  found  to  have  arrayed  themselves  in  favor  of 
the  enforcement  of  the  law  of  the  domicil  and  forum,  in  those 
cases  where  the  domestic  policy  is  so  important  and  pronounced, 
or  the  evils  it  aims  to  avert  are  so  imminent,  as  to  justify  such 
a  course.^*  In  the  view  of  this  line  of  decisions,  the  fact  that 
the  statutes  of  the  domicil  are  so  framed  as  explicitly  to  prohibit 

9  Stevenson  v.  Gray,  17  B.  Mon.  (Ky.)  193. 

10  86  N.  Y.  18,  40  Am.  Rep.  505. 

"  Kinney  r.  Com.,  30  Gratt.  (Va.)  858 ;  State  v.  Kennedy,  76  N.  C.  251, 
22  Am.  Rep.  683  ;  Jackson  v.  Jackson,  82  Md.  17,  33  Atl.  317,  319  ;  Williams 
V.  Gates,  5  Ired.  L.  (N.  C.)  535 ;  Pennegar  v.  State,  87  Tenn,  244,  10  S.  W. 
305,  2  L.  R.  A.  703  ;  Ex  parte  Kinney,  3  Hughes  (U.  S.),  1,  20-21  ;  State  v. 
Tutty,  41  Fed.  753,  759-760  ;  True  v.  Ranney,  21  N.  H.  52,  53  Am.  Dec.  164  ; 
Brook  V.  Brook,  9  H.  L.  Gas.  193. 


§  73  CAPACITY  TO  MABRY.  153 

such  marriages  by  its  citizens,  even  when  entered  into  abroad, 
is  only  one  evidence  of  the  importance  attached  to  its  policy  by 
the  State  of  the  domicil  and  forum.  But  other  evidences  of  the 
importance  of  the  domestic  policy,  in  the  absence  of  such  statute, 
are  not  excluded." 

No  finer  illustration  of  the  manner  in  which  this  divergence 
of  view  comes  about  can  be  found  than  that  presented  in  the 
comparison  of  the  cases  arising  upon  the  validity  of  marriages 
between  white  persons  and  negroes,  valid  where  contracted,  but 
prohibited  by  the  law  of  the  domicil  and  forum.  In  Mas- 
sachusetts, where  negroes  are  few,  it  has  been  held  under  such 
a  state  of  facts  that  the  law  of  the  domicil  and  forum  (Massa- 
chusetts) could  not  be  invoked  to  annul  a  marriage  between  its 
citizens,  validly  contracted  elsewhere.  On  the  other  hand, 
under  precisely  similar  circumstances  it  has  been  held  by  the 
courts  of  the  Southern  States,  where  negroes  are  numerous  and 
marriages  between  them  and  the  whites  are  regarded  justly  as 
most  contrary  to  public  policy  and  expediency,  as  well  as  utterly 
repugnant  to  the  sentiment  of  the  people,  that  marriages  of  this 
sort  will  not  be  sustained  in  the  domicil  and  forum,  though 
validly  contracted  by  its  citizens  in  another  jurisdiction,  even 
in  the  absence  of  a  statute  embracing  such  marriages  when  con- 
tracted abroad.^* 

The  true  principle  is  that  it  is  a  question  of  policy,  which 
each  State  must  determine  for  itself  according  to  the  conditions 
prevailing  there,  so  far  as  its  own  citizens  are  concerned,  and  it 
may  determine  the  question  as  well  through  its  courts  as  its 
legislature.  As  the  North  Carolina  court  expresses  it  in  State 
V.  Kennedy:  "  "When  it  is  conceded,  as  it  is, that  a  State  may 

"  See  State  r.  Tutty,  41  Fed.  753  ;  Ex  parte  Kinney,  3  Hughes  (U.  S.),  1  ; 
State  V.  Kennedy,  76  N.  C.  251,  22  Am.  Rep.  683,  684 ;  Pennegar  v.  State, 
87  Tenn.  244, 10  S.  W.  305,  2  L,  R.  A.  703  ;  Jackson  t;.  Jackson,  82  Md.  17, 
33  Atl.  317,  319. 

13  Kinney  r.  Com.,  30  Gratt.  (Va.)  858 ;  State  v.  Kennedy,  76  N,  C.  251, 
22  Am.  Rep.  683  ;  Ex  parte  Kinney,  3  Hughes,  1 ;  State  v.  Tutty,  41  Fed.  753. 
See  also  Jackson  v.  Jackson,  82  Md.  17,  33  Atl.  317,  319;  Pennegar  v.  State, 
87  Tenn.  244,  10  S.  W.  305,  2  L.  R.  A.  703. 

"  76  N.  C.  251,  22  Am.  Rep.  683,  684.  And  the  same  principle,  though 
with  the  opposite  result,  was  applied  in  Med  way  v.  Needham,  16  Mass.  157, 
6  Am.  Dec.  131. 


154  CAPACITY  TO  MARRY.  §  73 

by  legislation  extend  her  law  prescribing  incapacities  for  con- 
tracting marriage  over  her  own  citizens  who  contract  marriages 
in  other  countries  by  whose  law  no  such  incapacities  exist,  as 
Massachusetts  did  after  the  decision  of  Medway  v.  Needham, 
the  main  question  is  conceded,  and  what  remains  is  of  little 
importance.  Nothing  remains  but  the  question  of  legislative 
intent,  to  be  collected  from  the  statute." 

Nor  has  this  divergence  always  been  confined  to  cases  of  mar- 
riages between  white  persons  and  negroes.  The  same  difference 
of  opinion  appears  with  respect  to  the  importance  to  be  attached 
to  the  domestic  policy  prohibiting  certain  relatives  from  marry- 
ing.^^  So  also  a  like  difference  of  opinion  has  been  manifested 
in  the  effect  of  a  foreign  marriage  by  a  guilty  party  to  a  divorce 
suit  who  has  been  prohibited  to  marry  again." 

It  is  to  be  observed  that  if  the  parties  remove  from  the  State 
of  their  domicil,  with  the  bona  fide  intent  to  become  domiciled 
in  another  State,  and  having  settled  there  then  marry  according 
to  its  laws,  the  marriage,  though  prohibited  by  the  law  of  their 
first  domicil,  will  be  deemed  valid  everywhere,  even  in  the  fi,rst 
domicil,  should  they  afterwards  return  thither  either  tempo- 
rarily or  permanently." 

If  the  parties  to  the  marriage  are  domiciled  in  different  States 

15  For  example,  compare  Brook  v.  Brook,  9  H.  L.  Gas.  193  (in  which  a 
marriage  contracted  in  Holland,  between  a  domiciled  Englishman  and  his 
deceased  wife's  sister,  who  had  met  there  casually,  not  by  design,  was  held  to 
be  void  in  England,  because  within  degrees  of  kindred  prohibited  by  English 
law)  with  Stevenson  v.  Gray,  17  B.  Mon.  (Ky.)  193,  already  quoted,  and  Com. 
V.  Lane,  113  Mass.  458,  18  Am.  Rep.  509.  The  latter  case  criticises  Brook  v. 
Brook  very  severely.  And  perhaps  the  enforcement  of  a  domestic  policy  of  that 
nature  at  the  expense  of  international  comity  is  going  a  little  further  than 
sound  judgment  warrants.  In  England  however  the  lex  domicilii  is  regarded 
as  the  "proper  law."    See  Sottomayor  v.  De  Barros,  3  P.  D.  5,  7. 

16  Compare  Van  Voorhis  v.  Brintnall,  86  N.  Y.  18,  25,  40  Am.  Rep.  505 
(already  quoted),  and  Com.  v.  Lane,  113  Mass.  458,  18  Am.  Rep.  509,  with 
Pennegar  i;.  State,  87  Tenn.  244,  10  S.  W.  305,  2  L.  R.  A.  703.  See  post, 
§74. 

"  State  V.  Ross,  76  N.  C.  242,  22  Am.  Rep.  678;  West  Cambridge  v. 
Lexington,  1  Pick.  (Mass.)  506,  11  Am.  Dec.  231.  See  Cummington  v. 
Belchertown,  149  Mass.  223,  227,  21  N.  K  435 ;  Sutton  v.  Warren,  10  Met. 
(Mass.)  451. 


§  74  PARTICULAR   INCAPACITIES   TO   MARRY.  155 

at  the  time  of  the  marriage,  perplexing  questions  may  arise. 
Suppose  the  law  of  the  intended  husband's  domicil  prohibits 
the  marriage,  while  that  of  the  intended  bride's  does  not,  or 
vice  versa,  what  law  shall  govern  ?  The  solution  of  such  ques- 
tions will  be  found  in  the  principles  above  stated.  The  mar- 
riage, if  valid  where  contracted,  will  be  valid  everywhere, 
except  in  the  State  whose  policy  towards  its  own  citizens  has 
been  violated.  In  the  latter  State  the  marriage  will  be  annulled 
or  sustained  according  to  the  view  its  courts  take  of  the  relative 
importance  of  the  policies  involved,  or  their  view  of  the  legisla- 
tive intent.  But  it  must  not  be  forgotten  that  after  the  mar- 
riage the  parties  will  generally  reside  in  the  husband's  domicil, 
not  in  the  wife's.  Hence  the  importance  to  be  attached  to  the 
policy  of  the  wife's  prior  domicil  will  not  usually  be  so  great 
as  that  attached  to  the  policy  of  the  husband's  domicil. 

§  74.  Particular  Incapacities  to  Marry  —  Guilty  Party  to 
Divorce  prohibited  to  Marry  again.  —  In  the  preceding  section 
the  general  principles  regulating  matrimonial  incapacity  have 
been  considered,  and  incidentally  the  disabilities  imposed  by 
consanguinity  or  affinity  and  by  the  evils  of  miscegenation  have 
been  discussed  pretty  fully,  and  the  former  will  be  soon  ad- 
verted to  again. ^  The  disability  to  marry  again  imposed  under 
the  laws  of  many  States  upon  the  guilty  party  in  a  divorce  de- 
serves special  attention. 

In  many  of  the  States  the  legislatures  have  enacted  that  a 
guilty  party  shall  not  remarry  during  the  lifetime  of  the  in- 
nocent consort,  or  else  they  have  given  to  the  courts  the  power 
to  make  such  decree.  What  will  be  the  effect  if  the  party 
does  marry  again  ? 

If  no  foreign  element  is  introduced  into  the  case,  it  is  not  a 
question  of  international,  but  strictly  of  municipal  law,  with 
which  we  have  no  concern.  Such  will  be  the  case  when  the 
divorce  takes  place  in  the  domicil  of  both  the  parties,  and  the 
subsequent  marriage  occurs  in  the  same  State,  and  the  question 
arises  there  for  decision.  Here  there  is  no  foreign  element. 
But  if  the  question  arises  elsewhere,  or  if  the  subsequent  mar- 
riage occurs  in  a  State  other  than  the  domicil,  or  if  the  party 

1  Post.  §  75. 


166  PARTICULAR   INCAPACITIES   TO  MARRY.  §  74 

prohibited  to  remarry  is  not  domiciled  in  the  State  where  the ' 
divorce  is  granted,  a  foreign  element  is  introduced  which  must 
be  reckoned  with  in  the  final  determination  of  the  law  which 
should  govern  the  validity  of  the  second  marriage.  There  are 
a  number  of  important  distinctions  to  be  noted  here,  to  some  of 
which  attention  will  now  be  directed. 

In  all  such  cases,  the  first  question  is :  Did  the  court  decree- 
ing the  divorce  have  jurisdiction  of  the  guilty  party?  The 
essentials  to  give  a  court  jurisdiction  to  make  a  decree  of  divorce 
which  will  be  binding  in  other  States  are  considered  hereafter 
at  large.'  A  very  brief  summary  is  all  that  will  be  attempted 
here. 

For  the  purposes  of  the  divorce  itself,  if  the  parties  are 
domiciled  in  the  State  of  divorce,  its  courts  will  have  juris- 
diction, whether  or  not  the  defendant  is  personally  before  the 
court.  The  suit  for  divorce  is  a  proceeding  in  rem  to  dissolve 
the  marriage  status,  and  according  to  the  better  opinion  does 
not  require  a  personal  service  upon  nor  appearance  by  the 
defendant  in  order  to  give  to  the  court  jurisdiction  of  the  cause 
and  to  its  decree  an  extra-territorial  operation.'  But  when  to 
the  decree  of  divorce  is  superadded  an  order  that  the  guilty 
party  shall  not  marry  again,  the  question  arises  whether  this 
part  of  the  order  is  a  decree  in  rem  (like  the  divorce  itself)  or  a 
decree  in  personam.  If  the  latter,  in  order  to  be  exterritorially 
binding  upon  the  defendant,  he  or  she  must  voluntarily  appear 
or  be  personally  served  with  process  within  the  jurisdiction  of 
the  court.*  Whether  it  shall  be  deemed  a  proceeding  in  rem  or 
in  personam,  depends  upon  the  question  whether  the  prohi- 
bition to  reiparry  is  looked  upon  as  a  denial  of  relief  to  the 
guilty  party,  leaving  him  (or  her)  still  married,  as  has  been 
sometimes  averred,*  or  whether  it  is  regarded  as  merely  inflict- 
ing a  punishment  upon  him  for  his  wrong-doing,  while  still 
giving  full  effect  to  the  divorce  itself  as  to  both  parties.     The 

*  See  post,  §§  88  et  seq. 
»  Post,  §  89. 
«  See  post,  §§  85,  95. 

»  See  Elliott  v.  Elliott,  88  Md.  358,  363  ;  Williams  v.  Gates,  6  Ired.  L 
IN.  C.)  635,  638  ;  Calloway  v.  Bryan,  6  Jones  L.  (N.  C.)  570. 


§  74  PARTICULAR   INCAPACITIES   TO  MARRY.  157 

weight  of  reason  and  authority  is  decidedly  in  favor  of  the  latter 
view,  that  it  is  a  mere  penalty  or  punishment.* 

If  then  it  is  admitted  that  such  an  order  merely  inflicts  a 
penalty  upon  the  guilty  defendant,  without  impairing  his  status 
as  a  single  person,  fixed  by  the  decree  of  divorce,  the  decree  must 
be  regarded  as  in  personam,  that  is,  he  must  be  before  the  court. 
(It  may  perhaps  be  doubted  if  even  a  personal  service  upon 
him  within  the  territorial  jurisdiction  of  the  court  will  suffice, 
if  not  followed  by  appearance,  for  it  is  in  the  nature  of  a  sen- 
tence pronounced  upon  him  in  a  criminal  proceeding.)  At 
least  if  the  defendant  be  a  non-resident,  served  with  notice  by 
order  of  publication  only,  and  not  voluntarily  appearing,  the 
order  of  the  court  that  he  or  she  shall  not  remarry  cannot  be 
given  any  exterritorial  effect,  for  lack  of  jurisdiction.'' 

But  even  though  we  suppose  the  defendant  domiciled  in  the 
State  where  the  order  is  made,  and  even  though  he  voluntarily 
appears  to  defend  the  suit,  so  that  the  court  has  complete 
jurisdiction  to  make  the  order,  it  will  not  in  general  receive 
exterritorial  recognition  for  the  reason  that  it  is  a  penalty. 
Penal  disabilities,  as  we  have  seen,  are  never  enforced  by  the 
courts  of  other  States,  nor  recognized  by  them  as  existing,'  even 
though  such  States  themselves  impose  similar  disabilities  upon 
their  own  guilty  citizens,  or  though  the  guilty  party  seeks  to 
evade  the  law  of  his  domicil  by  going  elsewhere  to  be  married.' 

«  Huntington  v.  Attrill,  146  U.  S.  657,663  ;  Crawford  v.  State,  73  Miss.  172, 
35  L.  R.  A.  224,  225  ;  State  i>.  Weatherby,  43  Me.  248,  69  Am.  Dec.  59  ;  Van 
Voorhis  v.  Brintnall,  86  N.  Y.  18,  28-29,  40  Am.  Rep.  505 ;  "Wilson  v.  Holt, 
83  Ala.  540,  3  So.  321,  328 ;  Succession  of  Hernandez,  46  La.  Ann.  962,  24  L. 
R.  A.  83  ;  Dickson  v.  Dickson,  1  Yerg.  (Tenn.)  110,  24  Am.  Dec.  444  ;  Cora.  v. 
Lane,  113  Mass.  458, 18  Am.  Rep.  509  ;  West  Cambridge  v.  Lexington,  1  Pick. 
(Mass.)  506,  510,  11  Am.  Dec.  231  ;  Moore  v.  Hegeman,  92  N.  Y.  521,  524, 
44  Am.  Rep.  408. 

^  See  Maguire  v.  Maguire,  7  Dana  (Ky.),  181,  187  ;  Gamer  v.  Garner,  56 
Md.  127  ;  Van  Storch  v.  Griffin,  71  Penn.  St.  240. 

8  Ante,  §  10. 

9  Wilson  V.  Holt,  83  Ala.  528,  540,  3  So.  321,  328  ;  Dickson  v.  Dickson, 
1  Yerg.  (Tenn.)  110,  24  Am.  Dec.  444.  See  Succession  of  Hernandez,  46  La. 
Ann.  962,  24  L.  R.  A.  831 ;  West  Cambridge  v.  Lexington,  1  Pick.  (Mass.) 
606,  510,  11  Am.  Dec.  231. 


158  PAETICULAR   INCAPACITIES   TO  MARRY.  §  74 

A  fortiori  will  the  domiciliary  prohibitions  be  disregarded,  if 
the  party  abandons  his  former  domicil,  and  becoming  bona  fide 
domiciled  anew  in  another  State,  marries  there.^" 

It  is  to  be  observed  likewise  that  a  disability  imposed  upon 
the  guilty  party,  not  by  a  decree  of  the  court,  but  by  the  statute 
law  itself,  operates  and  is  intended  to  operate  only  upon  citi- 
zens, and  not  upon  strangers,  whether  the  divorce  is  granted 
there  or  elsewhere  ;  and  the  disability,  when  thus  imposed,  is 
penal  in  its  nature,  just  as  where  it  is  imposed  by  a  decree  of 
court.  It  will  not  therefore  be  recognized  exterritorially  even  as 
against  citizens  of  the  penalizing  State.  Nor  will  it  be  applied 
even  in  that  State  to  persons  other  than  citizens. ^^ 

Thus,  in  a  recent  Louisiana  case,  ^*  a  citizen  of  Louisiana  had 
been  divorced  there  for  his  adultery.  The  law  of  Louisiana  in 
such  case  prohibited  the  guilty  party  from  marrying  his  para- 
mour during  the  life  of  the  innocent  consort.  He  went  to  New 
York,  and  there  married  another  woman,  afterwards  returning  to 
Louisiana.  Had  this  marriage  taken  place  in  Louisiana  it  would 
have  been  valid.  The  New  York  law  prohibited  a  person  di- 
vorced for  his  own  adultery  to  marry  any  one  during  the  con- 
sort's lifetime.  The  Louisiana  court  held  that  the  New  York 
law  was  not  applicable  to  a  citizen  of  Louisiana,  and  that  the 
marriage  was  valid. 

But  in  cases  where  the  disability  is  imposed  by  the  domicil 
of  the  guilty  party,  and  the  validity  of  a  subsequent  foreign 
marriage  is  questioned  there,  there  is  much  the  same  division  of 
opinion  as  in  the  corresponding  case  of  other  incapacities,  and 
upon  the  same  distinctions  there  taken,  namely,  a  comparison  of 
the  respective  importance  to  be  attached  to  the  special  policy 
of  the  domicil  and  forum  ( prohibiting  a  guilty  party  to  re- 
marry), with  the  general  policy  of  upholding  marriages.      It 

w  West  Cambridge  v.  Lexington,  1  Pick.  (Mass.)  506,  610,  11  Am.  Dec. 
231  ;  Dickson  v.  Dickson,  1  Yerg.  (Teun.)  110,  24  Am.  Dec.  444;  Fuller 
V.  Fuller,  40  Ala.  301  ;  Wilson  v.  Holt,  83  Ala.  528,  3  So.  321,  328  ;  Webb's 
Estate,  1  Tnck.  (N.  Y.)  372. 

"  See  cases  before  cited.  See  Cra^'ford  v.  State,  73  Miss.  172,  18  So.  841^ 
35  L.  R.  A.  224,  225. 

«  Succession  of  Hernandez,  46  La.  Ann.  962,  24  L.  R.  A.  831. 


§  74  PARTICULAR   INCAPACITIES   TO   MARRY.  159 

is  a  difficult  matter  to  decide,  requiring  a  wise  judicial  discre- 
tion. Even  the  decisions  of  the  same  State  are  not  always 
harmonious." 

There  are  other  questions  also  that  arise  under  decrees  and 
statutes  creating  disabilities  of  this  character.  The  contention 
often  relates  not  to  the  validity  of  the  second  marriage  con- 
tracted elsewhere,  but  to  the  criminal  aspects  of  the  case,  as 
whether  the  guilty  party,  upon  his  return  to  his  domicil  and  his 
cohabitation  there  with  his  second  consort,  is  guilty  of  lewdness, 
fornication,  adultery,  or  bigamy.  It  will  be  observed  that  the 
first  two  offences  above  named  are  based  upon  the  invalidity  of 
the  second  marriage ;  while  the  last  two  are  based  lapon  the 
theory  that,  so  far  as  the  accused  is  concerned,  the  first  mar- 
riage continues  in  existence.  The  party  accused  cannot  be 
guilty  of  lewdness  or  fornication  with  a  woman  who  is  legally 
married  to  him;  he  cannot  be  guilty  of  adultery  or  bigamy  with 
a  woman  if  he  be  not  already  a  married  man. 

Since  it  is  settled  that  the  prohibition  to  remarry  does  not 
prevent  the  entire  dissolution  of  the  first  marriage  as  to  both 
parties  (it  being  inconceivable  that  there  should  be  a  husband 
without  a  wife,  or  vice  versa) ,  but  merely  operates  as  a  penalty 
or  punishment  imposed  upon  the  guilty  party,  it  follows  that 
upon  remarriage  that  party  cannot,  merely  because  of  such  re- 
marriage, be  deemed  guilty  of  either  adultery  or  bigamy.^*  Of 
course,   however,  this  does  not  imply  that  there  cannot  be  a 

1'  In  probably  the  majority  of  the  States  where  the  question  has  arisen,  it 
has  been  held  that  the  special  domestic  policy  in  this  instance  should  give 
way  to  the  more  general  one  of  upholding  marriages  wherever  practicable. 
The  following  decisions  hold  such  a  marriage  valid  even  in  the  domicil.  Com. 
V.  Lane,  113  Mass.  458,  18  Am.  Rep.  509 ;  Putnam  v.  Putnam,  8  Pick.  (Mass.) 
433 ;  Van  Voorhis  v.  Brintnall,  86  N.  Y.  18,  40  Am.  Rep.  505  ;  Thorp  r. 
Thorp,  90  N.  Y.  602  ;  Moore  v.  Hegeman,  92  N.  Y.  621,  44  Am.  Rep.  408. 
Other  decisions  give  precedence  to  the  domestic  policy,  and  favor  the  inva- 
lidity of  the  marriage.  West  Cambridge  v.  Lexington,  1  Pick.  (Mass.)  506, 
510,  11  Am.  Dec.  231  ;  Pennegar  v.  State,  87  Tenn.  244,  10  S.  W.  805, 
2  L.  R.  A.  703 ;  Marshall  v.  Marshall,  4  N.  Y.  Suppl.  449  ;  Williams  v.  Oates, 
5  Ired.  L.  (N.  C.)  535. 

"  Com.  V.  Putnam,  1  Pick.  (Mass.)  136;  People  v.  Hovey,  5  Barb.  (N.  Y.) 
1J7;  State  V.  Weatherby,  43  Me.  248,  69  Am.  Dec.  59  ;  Crawford  v.  State, 
73  Miss.  172,  35  L.  R.  A.  224,  225,  18  So.  848. 


160        POLYGAMOCrS   AND   INCESTUOUS  MARRIAGES.      §  75 

statute  providing  that  a  guilty  party  so  remarrying  shall  be 
punished  as  if  he  were  guilty  of  adultery  or  bigamy.  If  there 
be  such  a  statute,  the  effect  of  a  foreign  marriage  by  the  guilty 
party  must  generally  depend  upon  the  express  or  implied  intent 
of  the  statute,  the  tendency  of  judicial  construction  being  op- 
posed to  the  operation  of  the  statute  in  such  a  case,  unless  it 
be  specifically  embraced  therein.^* 

On  the  other  hand,  if  the  offence  charged  be  lewdness  or  for- 
nication, th«  charge  is  based,  not  on  the  continued  existence  of 
the  former  marriage  status,  but  upon  the  invalidity  of  the  sub- 
sequent union.  In  these  cases  therefore  the  guilt  or  innocence 
of  the  accused  will  turn  upon  the  view  taken  of  the  validity  of 
the  second  marriage,  the  principles  controlling  which  question 
have  already  been  discussed." 

In  one  case,  decided  in  Kew  York,"  the  question  has  arisen 
whether  or  not  such  foreign  marriage  constituted  a  contempt  of 
the  courts  of  the  domicil  (New  York),  and  it  was  held  that  it 
did  not. 

§  75.  Same  —  Polygamous  and  Incestuous  Marriages.  —  If 
one  having  a  consort  living  and  undivorced  marries  again,  though 
the  subsequent  marriage  should  take  place  in  a  barbarous  State 
where  dual  marriages  are  valid,  it  will  not  be  upheld  in  any 
civilized  country.  It  is  contra  honos  rriores.^  This  is  merely  an 
instance  of  the  operation  of  one  of  the  exceptions  to  the  enforce- 
ment of  a  foreign  law  discussed  in  the  second  chapter  of  this 
work. 

The  same  principles  apply  to  marriages  contracted  between 
relatives  so  near  as  to  cause  the  union  to  be  deemed  incestuous 
and  illegal  in  all  civilized  States.     Prohibitions  of  this  sort 

w  See  Com.  v.  Lane,  113  Mass.  458,  18  Am.  Rep.  509. 

w  See  Pennegar  v.  State,  87  Tenn.  244,  10  S.  W.  305,  2  L.  R.  A.  703 ;  State 
V.  Kennedy,  76  N.  C.  251,  22  Am.  Rep.  683. 

"  Thorp  V.  Thorp,  90  N.  Y.  602. 

1  Ross  V.  Ross,  129  Mass.  243,  247,  37  Am.  Rep.  321 ;  Com.  v.  Lane,  112 
Mass.  458,  463,  18  Am.  Rep.  509  ;  Van  Voorhis  r.  Brintnall,  86  N.  Y.  18, 
26,  40  Am.Rep.  505 ;  Collins  v.  Collins,  80  N.  Y.  1 ;  Hatchings  v.  Kimmell, 
31  Mich.  126,  18  Am.  Rep.  164,  168;  Jackson  v.  Jackson,  82  Md.  17,  33  Atl. 
317,  319 ;  State  r.  Ross,  76  N.  C.  242,  22  Am.  Rep.  678,  680-681 ;  Campbell 
V.  Crampton,  2  Fed.  417,  "424.  See  True  v.  Ranney,  21  N.  H.  52,  53  Am, 
Dec.  164,  166. 


§  75      POLYGAMOUS  AND  INCESTUOUS  MARRIAGES.        161 

imposed  by  the  policy  of  the  forum  alone,  or  by  the  policy  of  a 
few  States  merely,  will  not  have  the  effect  necessarily  of  aroid- 
ing  a  marriage  between  relations,  valid  where  contracted.*  In 
order  that  the  marriage  shall  universally  be  deemed  invalid 
(though  valid  where  contracted)  the  relationship  must  be  so 
close  as  to  condemn  the  union  in  all  civilized  countries,  and  to 
cause  it  to  be  considered  in  all  Christian  States  as  impious  and 
contra  bonos  mores.  It  is  generally  agreed  that  the  only  mar- 
riages answering  this  description  are  those  contracted  between 
persons  related  by  blood  in  the  lineal  ascending  or  descending 
line,  and  (in  case  of  collateral  relatives)  between  brother  and 
sister.* 

In  case  of  persons  related  in  more  distant  degree,  the  ques- 
tion whether  their  intermarriage  is  valid  will  in  general  depend 
upon  the  lex  celebrationis  of  the  marriage.  If  valid  there,  it 
will  usually  be  held  valid  in  every  State  in  which  it  is  called 
in  question.*  And  if  it  be  absolutely  void  where  contracted, 
it  will  in  general  be  deemed  void  everywhere. 

But  if,  where  contracted,  it  is  merely  voidable  by  decree  of 
court,  and  not  void  per  se,  the  fact  that  the  same  marriage  would 
be  absolutely  void  if  contracted  in  another  State  will  not  jus- 
tify the  courts  of  the  latter  State  in  pronouncing  the  parties  not 
to  be  man  and  wife,  even  though  they  have  since  lived  in  the 
latter  State,  much  less  if  they  are  domiciled  in  the  State  of  the 
marriage.  Such  is  the  rule  when  the  validity  of  the  marriage  is 
questioned  in  a  collateral  proceeding. 

Thus,  in  Sutton  v.  Warren,*  a  marriage  was  contracted  in 

'  See  ante,  §  73.  If  the  question  arises  in  the  domicil,  the  policy  of  the 
forum  (and  domicil)  may  be  held  to  be  paramount  to  the  lex  celebrationis  of 
the  marriage. 

»  Story,  Coufl.  L.  §  114 ;  Ross  v.  Ross,  129  Mass.  243,  247-248,  37  Am. 
Rep.  321  ;  Com.  v.  Lane,  113  Mass.  458,  463,  18  Am.  Rep.  509 ;  Medway 
V.  Needham,  16  Mass.  157,  6  Am.  Dec.  131 ;  Wightman  v.  Wightman, 
4  Johns.  Ch.  (N.  Y.)  343,  348-350;  Van  Voorhis  v.  Brintnall,  86  N.  Y.  18, 
26,  40  Am.  Rep.  505 ;  Hutchings  v.  Kimmell,  31  Mich.  126, 18  Am.  Rep.  164, 
168  ;  Jackson  v.  Jackson,  82  Md.  17,  33  Atl.  317,  319  ;  State  v.  Ross,  76 
N.  C.  242,  22  Am.  Rep.  678,  680-681. 

*  Except  in  certain  cases  where  the  domicil  is  the  forum.     See  ante,  §  73. 

'  10  Met.  (Mass.)  451. 

11 


162        POLYGAMOUS   AND   INCESTUOUS   MARRIAGES.      §  75 

England,  the  domicil  of  the  parties,  between  a  man  and  his 
mother's  sister.  Such  marriage  was  not  void  by  English  law 
prior  to  the  statute  of  6  Wm.  IV.  c.  54,  but  only  voidable  in 
the  Ecclesiastical  Court.  The  marriage  took  place  before  the 
statute.  The  parties  removed  to  Massachusetts,  about  one  year 
after  the  marriage,  by  the  law  of  which  State  a  marriage  be- 
tween such  relatives  was  absolutely  void.  The  wife,  Ann  Sut- 
ton, lent  money  to  Warren  on  his  note,  which  was  not  paid, 
whereupon  the  husband  sued  Warren  upon  the  note;  and  objec- 
tion being  made  that  he  was  not  the  husband  of  Ann,  the  court 
held  that  the  marriage,  not  being  void  in  England  but  voidable 
only  and  not  avoided,  could  not  be  attacked  collaterally  in 
Massachusetts  by  reason  of  the  laws  of  that  State.* 

6  See  Cummington  v.  Belchertown,  149  Mass.  223,  226,  21  N.  E.  435 ; 
post,  $  78. 


76  DUAL  MATURE  OF  MABBIAGZ.  168 


CHAPTER  VI. 

STATUS  OF  MARRIAGE. 

§  76.  Dual  Nature  of  Marriage.  —  There  are  two  senses  in 
which  the  term  marriage  is  familiarly  used,  both  of  which 
are  essential  to  a  true  marriage,  the  one  being  preliminary  to 
the  other.  These  two  essential  elements  of  the  legal  idea  of 
marriage  are  :  (1)  The  contract  of  marriage,  the  agreement  of 
the  parties,  the  wedding  ceremony;  and  (2)  The  state  of  life 
which  is  ushered  in  by  that  ceremony  or  agreement,  the  matri- 
monial union,  or  the  marriage  status.  These  elements,  though 
both  often  denominated  "marriage,"  are  separate  and  distinct, 
and  should  be  so  treated.  There  can  be  no  matrimonial  union 
without  a  marriage  contract;  there  can  be  no  (valid)  marriage 
contract  without  a  matrimonial  union  resulting  therefrom.  Yet 
they  are  by  no  means  one  and  the  same.  A  failure  to  observe 
the  distinction  will  cause,  as  it  has  already  often  caused,  serious 
confusion  and  error.  ^ 

1  See  Cook  v.  Cook,  56  Wis.  195,  43  Am.  Rep.  706,  14  N.  W.  33,  36. 
Thus  we  find  the  New  York  courts  holding  that  a  divorce  is  a  proceeding  in 
personam,  and  that  it  operates  to  annul  the  contract  of  marriage,  instead  of 
dissolving  the  status  or  union  created  by  that  contract,  in  which  latter  case 
the  proceeding  would  be  in  rem,  as  is  generally  held.  See  post,  §§  87,  89  et 
seq.  In  Jones  v.  Jones,  108  N.  Y.  415,  424,  —  a  divorce  case,  —  the  New 
York  court  says :  "  The  Texas  court  did  not  acquire  jurisdiction  of  the  defend- 
ant by  service  of  citation  here.  The  contract  of  marriage  cannot  be  annulled 
by  judicial  sanction  any  more  than  any  other  contract  inter  partes,  without 
jurisdiction  of  the  person  of  the  defendant."  The  distinction  between  the 
contract  of  marriage  and  the  resulting  union  or  status  is  brought  out  in  many 
of  the  cases.  See  Story,  Confl.  L.  §  124  a,  note  (a)  ;  Brook  r.  Brook,  9  H.  L. 
Cas,  193  ;  Kinney  v.  Com.,  30  Gratt.  (Va.)  858 ;  State  v.  Kennedy,  76  N.  C. 
251,  22  Am.  Rep.  683,  684  ;  Campbell  v.  Crampton,  2  Fed.  417,  424 ;  State 
V.  Tutty,  41  Fed.  753,  758  ;  Adams  v.  Palmer,  51  Me.  481,  483. 


164  DUAL  NATURE   OF   MARRIAGE.  §  76 

So  far  as  the  contract  of  marriage  is  concerned,  it  is  an  exe^ 
cuted  agreement  between  two  persons  who  must  be  competent  to 
contract,  and  is  governed  by  the  same  general  rules  that  control 
other  executed  contracts.^ 

But  a  marriage,  in  its  complete  sense,  is  much  more  than  a 
contract.  It  is  ushered  in  by  the  solemn  compact  of  the  parties, 
with  the  accompaniment  of  such  formalities  and  ceremonies  as 
the  law  may  prescribe.  The  result  of  this  contract  is  the  im- 
mediate creation  of  a  union  for  life  between  the  parties.  But 
the  union  itself  is  no  more  a  contract  than  the  ownership  of  land 
under  a  deed  of  conveyance  is  a  contract.  It  is  a  status,  a  con- 
dition, which  by  their  contract  has  become  fastened  upon  the 
parties  during  their  lives  and  in  every  country  whither  they 
may  go,  whether  temporarily  or  permanently. 

The  creation,  continuation,  and  dissolution  of  this  relation 
constitute  matters  of  deepest  concern  not  only  to  the  parties  in- 
terested but  to  the  State  as  well.  The  proper  performance  of 
the  duties  it  imposes  involves  not  only  the  highest  happiness 
and  welfare  of  the  individuals  immediately  concerned,  but  also 
that  of  their  offspring  and  of  the  countless  generations  to  suc- 
ceed them.  To  the  State  it  offers  the  means  of  protecting  its 
>itizens  from  impurity  and  immorality,  secures  them  the  bless- 
ings of  home  and  family,  and  creates  a  noble  nursery  for  the 
commonwealth . 

Nothing  can  be  of  greater  importance  or  interest  to  the  State 
than  this  relation,  which,  with  its  incident,  —  the  family,  —  is 
justly  deemed  the  foundation,  corner-stone,  and  unit  of  the 
social  order.  It  is  not  surprising  therefore  to  find  the  State 
regarded  almost  as  a  party  to  the  transaction,  both  in  its  incep- 
tion and  in  its  dissolution.' 

2  The  proper  law  governing  the  contract  of  marriage  will  be  considered 
post,  §§  77,  78. 

»  See  Hood  v.  State,  56  Ind.  263,  26  Am.  Rep.  21,  24 ;  People  v.  Dawell, 
25  Mich.  247,  12  Am.  Rep.  260,  268  ;  Ellis  v.  Ellis,  55  Minn.  401,  56  N.  W. 
1056,  1059  ;  Prosser  v.  Warner,  47  Vt.  667,  19  Am.  Rep.  132,  134 ;  Gregory 
V.  Gregory,  78  Me.  187,  57  Am.  Rep.  792  ;  Cook  v.  Cook,  56  Wis.  195,  43  Am. 
Rep  706,  14  N.  W.  33,  36  ;  Dunham  v,  Dunham,  162  111.  589,  44  N.  E.  418. 
35  L.  R.  A.  70,  79  ;  O'Dea  v.  O'Dea,  101  N.  Y.  23,  39  (dissenting  opinion). 


§  77  THE   CONTRACT   OP  MARBIAQE.  165 

Not  only  will  the  State  prescribe  definitely  the  persons  who 
may  enter  into  the  relation  and  the  forms  and  solemnities  with 
which  it  shall  be  ushered  in,  but  it  will  likewise  preside  over 
its  dissolution,  not  permitting  a  termination  of  it  during  the 
lives  of  the  parties,  save  with  its  consent  (through  its  courts) 
and  for  causes  assigned  by  itself.  Many  of  the  peculiarities 
incident  to  the  law  regulating  marriage  and  divorce  are  due  to 
the  fact  that  the  State  is  thus  a  quasi  party  to  the  transaction  and 
deeply  interested  in  the  proper  performance  of  its  obligations. 
There  is  perhaps  no  other  private  relation  in  which  the  State 
becomes,  as  it  were,  a  third  party.* 

Keeping  the  contractual  element  of  marriage  distinct  from 
the  status,  we  will  examine  (1)  The  ''proper  law  "  regulating 
contracts  of  marriage;  (2)  The  ''proper  law"  governing  the 
marriage  status  or  the  matrimonial  union  that  results  from  the 
contract. 

§  77.  The  Contract  of  Marriage  —  Formal  Validity.  —  By 
the  contract  of  marriage,  or  marriage  contract,  is  meant  the 
solemn  agreement  of  the  parties  to  assume  the  relation  of  man 
and  wife,  —  the  wedding  ceremony,  —  which  constitutes  the 
vestibule  to  the  matrimonial  union. 

It  is  of  course  to  be  distinguished  from  a  contract  to  marry, 
at  least  at  the  present  day,  when  such  contracts,  even  though 
accompanied  by  consummation,  no  longer  constitute  a  marriage. 
The  contract  to  marry  is  merely  an  executory  contract,  to  be 
performed  thereafter  by  marriage ;  while  the  marriage  contract 
itself  is  an  executed  contract,  performed  at  the  same  time  and 
place  at  which  it  is  entered  into.  The  contract  to  marry  may 
be  performed  elsewhere  than  where  it  is  entered  into.  The  con- 
tract to  marry  may  be  broken.  The  contract  of  marriage  cannot 
be,  though  the  rights  and  obligations  springing  from  the  marital 

*  Unless  the  relation  of  parent  and  child  be  excepted,  to  which  the  relation 
of  marriage  has  been  sometimes  likened.  See  Cook  v.  Cook,  56  Wis.  195,  43 
Am.  Rep.  706,  14  N.  W.  33,  36.  But  the  relation  of  parent  and  child  has  its 
origin  in  the  laws  of  nature  and  in  municipal  law,  not  in  contract.  Matri- 
mony is  more  nearly  analogous  to  the  statutory  relation  of  adopted  parent  and 
child,  which,  like  marriage,  begins  with  a  quasi  contract  with  the  State,  re- 
sulting in  the  creation  of  a  status.     See  post,  §  101  • 


166  THE   CONTRACT   OF  MARRIAGE.  §  77 

relation  may  be  violated.  There  can  be  no  "  breach  "  of  a  com- 
pletely executed  contract. 

Following  the  general  rule  touching  the  "proper  law"  to 
govern  executory  contracts,^  if  a  contract  to  Tnarry  \n  madf  in 
onft  Rt.atp  (locus  r.nlphratinnis),  n,iifLjt_isagreed  that_the  mar- 
riage-iiL-tft-takeqilace  in  another  (locus  solutionis),  or  such  an  in- 
te ntion^  is_tfl_be  implied,  the  law  of  the  place  of_performance 
(lex  s<°rhrft<»ini^  ip  tn  [jnvrrn  the  performance  ^fthe  contract, 
and  to  determine  whether  it  has  been  properly  performed,  ofj  if 
it  cannot  be  legally  performed  there,  to  determine  the  validity 
of  the  original  contract.  If  the  marriage  may  lawfully  be  cele- 
brated in  the  State  agreed  upon  (the  locus  solutionis  of  the  con- 
tract to  marry),  the  contract  to  marry  will  be  sustained,  though 
made  in  a  State  where  such  marriage  (if  there  celebrated)  would 
be  invalid;  and  if  the  marriage  is  contrary  to  the  law  of  the 
place  where  the  executory  contract  is  to  be  performed,  that 
promise  will  be  invalid  though  it  could  have  been  lawfully  per- 
formed in  the  State  where  the  promise  of  marriage  is  entered 
into.  The  lex  solutionis  of  an  executory  contract  governs  mat- 
ters relating  to  its  performance,  and  this  applies  as  well  to 
promises  of  marriage  as  to  other  executory  contracts.  * 

In  the  discussion  of  the  contract  of  marriage,  which  is  an 
executed  contract,  we  must  anticipate  the  principles  which  de- 
termine the  ''proper  law"  governing  executed  contracts  gener- 

1  See  post,  §  175. 

2  See  Haviland  v.  Halstead,  34  N.  Y.  643  ;  Van  Voorhis  v.  Brintnall,  86 
N.  Y.  18,  26,  40  Am.  Rep.  505.  But  see  Campbell  v.  Cramptoii,  2  Fed.  417, 
421.  In  the  latter  case,  a  man  entered  into  a  contract  in  Alabama,  where  he 
resided,  with  his  aunt,  to  marry  her  at  a  future  time  in  New  York,  where  she 
resided.  Such  a  marriage  was  invalid  in  Alabama,  but  goodin  New  York. 
The  woman  sued  him  in  New  York  for  breach  of  promise.  The  court  held 
that  the  contract  was  invalid,  but  not  on  the  ground  that  the  contract  should  be 
governed  by  the  law  oflhe  place  where  it  was  made.  On  the  contrary,  it  was 
admitted  that  its  validity  should  be  governed  by  the  law  of  the  place  of  per- 
formance (lex  solutionis).  But  it  was  decided  that  the  place  of  performancs 
of  the  promise  of  marriage  was  not  the  place  where  the  marriage  was  to  taka 
place  (New  York),  but  was  the  domicil  of  the  future  husband  (Alabama), 
where  the  parties  were  to  live  their  married  life.  This  latter  ruling  can  hardly 
be  reconciled  with  reason.*  The  contract  to  marry  is  performed  as  soon  as  thfl 
marriage  occurs. 


§  77  THE  CONTRACT   OP   MAERIAQB.  161 

allj,  from  which  the  contract  of  marriage  does  not  materially 
differ. 

We  have  heretofore  sfifin  that  thn  nf>pni  ilj  III  (  iiiiliiw^li  iiiitLLJiij^M 
is  iiL-general  to  be  d''*-'^\Tn'^rt(>A  l^y  ^ha  Iqw  r>f  flip  plty^p  whfirft  tjhft 

Cnntraflt  if^  tn  h^  ^j^fprofl   infn    (In^  111!  i   /ml^T^I'jtt.^Tii'a)  « 

Another  principle  applicable  to  contracts  generally,  and  equally 
applicable  to  the  marriage  contract,  is  that  the  formal  validity 
of  the  contract  (that  is,  the  forms  and  solemnities  with  which 
it  is  to  be  entered  into)  is  also  to  be  determined  by  the  law  of 
the  place  where  the  contract  is  entered  into  (lex  loci  celebra- 
tionis).* With  respect  to  the  forms  and  ceremonies  of  the  mar- 
riage, the  solemnities  with  which  the  parties  are  required  by 
law  to  enter  into  the  marriage  contract,  it  is  universally  con- 
ceded by  all  the  authorities,  English  and  American,  that  the 
lex  celebrationis  governs,  no  matter  where  the  question  arises. 
So  far  as  these  matters  are  concerned,  if  the  marriage  is  valid 
in  the  locus  celebrationis,  it  is  valid  everywhere;  if  invalid 
where  contracted,  it  is  in  general  invalid  everywhere.*  Thus 
the  lex  celebrationis  has  been  held  to  govern  the  effect  upon 
the  validity  of  the  marriage  contract  of  the  omission  of  banns 
or  license;'  of  the  want  of  consent  of  parent  or  guardian;^  of 

«  Ante,  §  73. 

*  See  post,  §  172. 

*  Scrimshire  v.  Scrimshire,  2  Hagg.  Cons.  395  ;  Dalrymple  v.  Dalrjrmple, 
2  Hagg.  Cons.  54  ;  Compton  v.  Bearcroft,  2  Hagg.  Cons.  444 ;  Warrender  w. 
Warrender,  2  CI.  &  F.  488,  530  ;  Patterson  v.  Gaines,  6  How.  560,  587 ;  State 
V.  Tutty,  41  Fed.  753,  760;  Phillips  v.  Gregg,  10  "Watts  (Penn.),  158,  36 
Am.  Dec.  167,  168  ;  Diimaresly  v.  Fishly,  3  A.  K.  Marsh.  (Ky.)  368  ;  Hutch- 
ings  »».  Kimmell,  31  Mich.  126, 18  Am.  Rep.  164  ;  Com.  r.  Graham,  157  Mass. 
73,  75  ;  Loring  v.  Thorndike,  5  Allen  (Mass.),  257,  265;  Vischer  u.  Vischer, 
12  Barb.  (N.  Y.)  640,  643 ;  Kinney  v.  Com.,  30  Gratt.  (Va.)  858  ;  Clark  v. 
Clark,  52  N.  J.  Eq.  650,  30  Atl.  81,  83  ;  Jackson  v.  Jackson,  82  Md.  17,  33 
Atl.  317,  319  ;  Jackson  v.  Jackson,  80  Md.  176,  30  Atl.  752,  754 ;  Pennegar 
V.  State,  87  Teun.  244,  10  S.  W.  305,  2  L.  R.  A.  703,  705 ;  State  v.  Kennedy, 
76  N.  C.  251,  22  Am.  Rep.  683,  684. 

'  Compton  V.  Bearcroft,  2  Hagg.  Cons.  444  ;  Loring  v.  Thorndike,  5  Allen 
(Mass.),  267,265.  The  former  was  the  first  case  to  uphold  the  validity  of 
"  Gretna  Green  "  marriages. 

7  Steele  v.  Braddell,  Milw.  (Irish),  1 ;  Simoniu  v.  Mallac,  2  Sw.  &  Tr.  «7 ; 
Com.  V.  Graham,  1 57  Mass.  73. 


168  THE  CONTRACT   OF  MABBIAGE.  §  77 

the  omission  of  religions  rites,  such  as  a  celebrant   in   holy 
orders,'  etc. 

The  fact  that  the  parties  go  abroad  to  contract  the  marriap^e 
in  ordex—jg  evaJe^the  laws  of  their  domicil  with  respect  to 

lir>pnap,  Viannp,  celebrants,  etc.   (wh^^b  nr^  TTnuilavn  nf  ^ii>m.),  will 

not  invalidate  the  marriaprPi  if  yftlid  ^hffrtt  ^ontracfrftd,  _pTirh  a 


marriage  will  be  sustained  even  in  the  courts  of  the  domicil 
upon  the  parties'  retuxn  thithpr^ — But  if  the  portioo^  ml^tfaeir 
anxi^  to  evade  the  law  of  their  domicile  go  into  a  barbarous 
or  unsettled  country,  subject  to  no  particular  law,  the  law  of 
theiraomicil  is  to  be  consldfeTtid  ma  following  them  and  as  still 
governing^ the  contract: — And  perhaps  the  same  principfe^pplies 
to  marriages  contracted  on  board  vessels  on  the  high  seas,  in 
evasion  of  the  domiciliary  law,  no  matter  what  flag  the  vessel 
flies."* 

But  the  general  rule  that  the  lex  celebrationis  regulates  the 
forms  and  ceremonies  incident  to  the  contract  of  marriage,  and 
that  a  marriage  invalid  in  these  respects  by  the  law  of  the 
place  where  it  is  celebrated  is  invalid  everywhere,  is  subject  to 

*  Dalrymple  v.  Dairy mple,  2  Hagg.  Cons.  54  ;  Phillips  v.  Gregg,  10  Watts 
(Penn.),  158,  36  Am.  Dec.  167,  168  ;  Dumaresly  v.  Fishly,  3  A.  K.  Marsh. 
(Ky.)  368;  Hatchings  v.  Kimmell,  31  Mich.  126,  18  Am.  Rep.  164;  Jackson 
V.  Jackson,  80  Md.  176,  30  Atl.  752,  754 ;  Clark  v.  Clark,  62  N.  J.  Eq.  650, 
30  Atl.  81. 

•  "Where  the  evasion  of  the  domiciliary  law  is  in  respect  to,  not  a  matter  of 
form,  but  a  matter  of  capacity  to  marry,  the  courts  of  the  domicil  will  some- 
times,  as  we  have  seen,  substitute  the  domestic  law.     See  ante,  §  73. 

10  Norman  v.  Norman,  121  Cal.  620,  66  Am.  St.  Rep,  74.  In  this  case, 
the  parties  left  California,  where  they  were  domiciled,  in  a  small  boat,  reached 
the  high  seas,  and  there  agreed  in  the  presence  of  the  captain  of  the  boat  to 
take  each  other  as  man  and  wife,  in  evasion  of  the  California  law,  requiring 
the  consent  of  the  parents.  It  was  held  that,  the  high  seas  being  subject 
to  the  laws  of  no  particular  State,  the  law  of  California  followed  the  parties,  and 
the  marriage  was  invalidated.  The  decision  might,  it  would  seem,  have  been 
placed  upon  a  safer  foundation.  The  boat  was  a  California  boat,  and  as  such 
a  part  of  the  territory  of  California  while  on  the  high  seas,  and  therefore  sub- 
ject to  California  law.  Should  a  couple  competent  to  marry  elope  from  their 
domicil  and  be  married  on  board  a  foreign  oceAU  liner,  in  accordance  with  the 
law  of  the  flag,  but  in  evasion  of  the  law  of  their  domicil,  it  could  hardly  be 
maintained  that  the  law  of  the  domicil  should  control  in  formal  matters. 


§  78  VALIDITY  OP  MABBIAGE   CONTRACT.  169 

an  exception  in  the  case  of  marriages  celebrated  in  barbarous 
countries,  or  in  a  country  whose  law  requires  religious  rites  op- 
posed to  the  tenets  of  the  faith  prevailing  in  the  country  to 
which  the  parties  belong.  The  exception  has  its  origin  in  a  sort 
of  moral  or  religious  necessity.  If  the  parties,  in  such  case, 
conform  to  the  requirements  of  their  own  domicil,  the  marriage 
will  generally  be  valid.*^ 

§  78.  Substantial  Validity  of  Marriage  Contract.  —  The  con- 
tract  of  marriage  is  an  executed,  not  an  executory  contract,  and 
is  fully  performed  as  soon  as  it  is  entered  into.  There  can  be 
no  question  of  its  performance  elsewhere.^  For  the  same  reason 
there  can  be  no  question  of  its  breach  at  any  other  time  or  place 
than  when  and  where  it  is  entered  into.  K  a  "violation  of  the 
marriage  contract  "  is  alleged  to  have  taken  place  after  the  mar- 
riage, as  in  case  of  desertion,  cruelty,  adultery,  etc.,  it  is  an 
inaccurate  and  misleading  use  of  words.  In  such  cases,  it  is 
the  marriage  status  or  relation  whose  obligations  have  been 
broken,  not  the  marriage  contract. 

Owing  to  this  misconception,  some  courts  have  held  that  in 

u  Story,  Confl.  L.  §  118  ;  Whart.  Confl.  L.  §§  175, 176 ;  Ending  «.  Smith, 
2  Hagg.  390  ;   Harford  v.  Morris,  2  Hagg.  430. 

*  Many  cases,  it  is  trae,  speak  of  the  performance  of  the  marriage  contract 
in  places  other  than  that  where  the  marriage  is  solemnized,  usually  the  par- 
ties' domicil.  See  Warrender  v.  "Warrender,  2  CI.  &  F.  488,  536  ;  Vischer  r. 
Vischer,  12  Barb.  (N.  Y.)  640,  646  ;  Campbell  v.  Crampton,  2  Fed.  417, 425  ; 
Shreck  v.  Shreck,  32  Tex.  578,  5  Am.  Rep.  251.  These  cases  refer  for  the 
most  part  to  the  law  governing  the  personal  rights  and  obligations  of  the  mar- 
ried pair,  such  as  the  violations  of  duty  which  may  be  grounds  to  dissolve  the 
marriage.  Another  group  of  cases  which  fall  into  the  same  inaccuracy  deal 
with  the  law  governing  the  marital  rights  of  the  parties  in  property  of  the 
consort,  subsequently  acquired.  See  Le  Breton  v.  Miles,  8  Pai.  Ch.  (N.  Y. ) 
261,  265  ;  Mason  v.  Homer,  105  Mass.  116  ;  Harral  v.  Harral,  39  N.  J.  Eq. 
379,  51  Am.  Rep.  17,  23,  24  ;  Kneeland  v.  Ensley,  Meigs  (Tenn.),  620,  33 
Am.  Dec.  168,  169. 

In  all  questions  of  this  character,  arising  after  the  marriage  contract  is  en- 
tered into,  the  marriage  contract  itself  has  no  influence.  It  is  the  marriage 
status,  resulting  from  the  contract,  upon  which  these  rights  depend,  and  the 
law  which  controls  that  status,  not  that  which  governs  the  contract,  is  the 
" proper  law "  to  determine  such  rights.  The  status  may  exist  or  "be  per- 
formed "  elsewhere,  but  the  marriage  contract  must  in  its  nature  be  performed 
where  it  is  entered  into. 


170  VALIDITY  OP  MARRIAGE   CONTEACT.  §  78 

divorce  cases  the  law  of  the  place  where  the  marriage  was  con- 
tracted must  be  looked  to  in  order  to  determine  on  what  grounds 
the  marriage  may  be  dissolved.^  It  is  now  well  established  how- 
ever that  such  matters  are  not  violations  of  the  marriage  con- 
tract^ but  of  the  marriage  relation  and  its  obligations,  and  as 
such  are  controlled  by  the  law  which  governs  that  status,  that 
is,  the  law  of  the  parties'  domicil  at  the  time  of  the  divorce,  re- 
gardless of  the  law  of  the  place  where  the  marriage  was  cele- 
brated or  where  the  acts  complained  of  occurred.' 

But  if  the  marriage  is  alleged  to  be  voidable  by  decree  of  court 
for  a  cause  existing  at  the  time  of  the  marriage  contract,  though 
not  void  per  se,  quite  different  considerations  present  themselves. 
Here  the  invalidating  matter  goes  to  the  very  root  of  the  con- 
tract itself  and  renders  it  voidable.  The  status  in  this  case 
may  be  dissolved,  if  at  all,  not  for  any  violation  of  the  marriage 
relation,  for  the  parties  may  have  been  exemplary  in  their  con- 
duct towards  each  other,  but  merely  because  the  contract  upon 
which  it  is  dependent  may  be  avoided.  This  is  a  very  different 
case  from  that  of  supervenient  causes  for  divorce. 

The  subject  is  not  free  from  difficulty.  If  the  marriage  is 
valid  and  free  from  objection  in  the  State  where  it  is  solemnized, 
there  can  be  no  doubt  that  it  will  be  held  free  from  objection 
elsewhere,  even  though  the  parties  should  be  domiciled  in,  or 
should  afterwards  remove  to,  another  State,  by  whose  laws  such 
a  marriage  would  be  voidable  ab  initio* 

2  This  was  substantially  the  view  taken  in  England  by  the  earlier  decisions. 
See  Dicey,  Confl.  L.  270,  note  (1);  Lolley's  Case,  2  CI.  &  F.  567;  McCarthy 
V.  De  Caix,  2  CI.  &  F.  568  ;  Tooey  v.  Lindsaj-,  1  Dow.  117.  See  Arrington 
V.  Arrington,  102  N.  C.  491,  9  S.  E.  200,  207. 

*  This  is  now  the  rule  even  in  England.  See  Dicey,  Confl.  L.  270  ;  Wilson 
17.  Wilson,  L.  R.  2  P.  &  D.  435,  442  ;  Shaw  v.  Gould,  L.  R.  3  H.  L.  55,  85. 
And  it  is  so  held  in  America  with  great  unanimity.  See  Harteau  v.  Harteau, 
14  Pick.  (Mass.)  181,  25  Am.  Dec.  372  ;  Chase  v.  Chase,  6  Gray  (Mass.),  157, 
161;  Watkins  v.  Watkius,  135  Mass.  83;  Hunt  v.  Hunt,  72  N.  Y.  217,  228, 
28  Am.  Rep.  129;  Roth  v.  Roth,  104  111.  35,  44  Am.  Rep.  81,  83;  Van 
Fossen  v.  State,  37  Ohio  St.  317,  41  Am.  Rep.  507,  508  ;  Felty.  Felt,  57  N.  J. 
Eq.  101,  40  Atl.  436.  But  see  Prosser  v.  Warner,  47  Vt.  667,  19  Am.  Rep. 
132,  134  ;  Norris  v.  Norris,  64  N.  H.  523,  15  Atl.  19.  The  last  two  cases 
qualify  the  rule  somewhat,  —  it  is  believed,  erroneously. 

♦  Such  would  be  the  case  if  the  marriage  were  absolutely  void  in  the  latter 


§  78  VALIDITY  OF  MARRIAGE   CONTRACT.  171 

If  the  marriage  is  voidable  where  contracted  (but  is  not  there 
annulled),  and  the  parties  remove  to  another  State,  the  question 
becomes  more  complex.  If  void  or  voidable  by  the  laws  of  the 
latter  State  also,  it  would  seem  reasonable  that  it  should  be 
held  to  be  voidable  there. *  However  this  may  be,  it  is  certainly 
not  void  in  the  latter  State,  so  as  to  be  susceptible  of  collateral 
attack  in  its  courts.' 

Finally,  if  the  marriage  is  valid  by  the  law  of  the  latter  State, 
while  voidable  (though  not  annulled)  in  the  State  where  it  was 
contracted,  it  would  seem,  upon  principle,  that  it  should  be 
voidable  in  the  latter,  for  the  invalidity  relates  to  the  marriage 
contract,  and  not  to  the  status  merely.'' 

In  Cummington  v.  Belchertown,*  a  woman  residing  in  Massa- 
chusetts married  there,  and  afterwards  became  insane.  Her 
Fusband,  leaving  her  in  Massachusetts,  went  to  New  York, 
where  he  applied  to  have  the  marriage  annulled  on  the  ground 
of  fraud  in  its  procurement,  alleging  that  his  wife  had  been  in- 
sane  before  her  marriage  and  that  this  fact  had  been  concealed 
from  him.  The  New  York  court  annulled  the  marriage  for  the 
fraud  alleged  (which  was  not  a  ground  for  annulling  the  mar- 
riage in  Massachusetts),  and  the  validity  of  the  New  York  decree 
coming  in  question  in  Massachusetts,  the  court  held  it  invalid. 
One  of  the  grounds  of  its  decision  was  that  the  validity  of  the 
marriage  contract,  entered  into  in  Massachusetts,  should  have 
been  governed  byMassachusetts,  not  by  New  York,  law. 

In  Sutton  V.  Warren,^  an  Il^nglishman  married  in  England 

State,  except,  according  to  some  authorities,  when  it  is  the  actual  domicil  of 
the  parties  at  the  time  of  the  marriage.  See  ante,  §  73.  A  fortiori  should  it 
be  so  (probably  without  even  the  exception  just  adverted  to)  when  the  mar- 
riage is  voidable  only  in  the  latter  State.  See  Cummington  v.  Belchertown, 
149  Mass.  223,  226,  21  N.  E.  435. 

6  Cummington  v.  Belchertown,  149  Mass.  223,  226,  21  N.  E.  435. 

*  Sutton  V.  Warren,  10  Met.  (Mass.)  451  ;  Com.  v.  Lane,  113  Mass.  458, 
463,  18  Am.  Rep.  509. 

■^  See  Cummington  v.  Belchertown,  149  Mass.  223,  226,  21  N.  E.  435.  But 
it  is  possible  that  the  general  favor  shown  towards  marriages  would  prevent 
this  result. 

«  149  Mass.  223,  226,  21  N.  E.  435. 

^  10  Met.  (Mass.)  451,  already  quoted,  ante,  §  75. 


172     MARRIAGE   STATUS   OR  MATRIMONIAL   UNION.      §  79 

his  mother's  sister,  the  English  law  at  that  time  rendering 
such  a  marriage  merely  voidable.  The  parties  afterwards  (the 
marriage  not  having  been  annulled  meanwhile)  removed  to 
Massachusetts,  where  such  marriage  was  absolutely  void.  The 
husband  having  brought  suit  upon  a  chose  in  action  belonging 
to  the  wife,  it  was  objected  that  the  marriage  was  void  under 
Massachusetts  law,  but  the  court  held  that  it  could  not  be  sub- 
jected to  collateral  attack. 

§  79.  The  Marriage  Status  or  Matrimonial  Union  —  Its 
Commencement  cind  Continuance.  —  As  has  been  already  ob- 
served, the  status  of  marriage,  the  legal  union  between  man 
and  wife,  is  justly  deemed  one  of  the  most  important,  if  not  the 
most  important,  of  all  the  relations  recognized  by  the  law.^ 

The  discussion  of  the  proper  law  regulating  the  marriage 
status  may  be  divided  into  the  following  heads:  (1)  The  law 
governing  the  commencement  of  the  status;  (2)  That  govern- 
ing the  continuance  of  the  status,  with  the  incidents  arising 
therefrom;  and  (3)  The  law  governing  the  dissolution  of  the 
status,  or  divorce,  —  a  separate  chapter  being  devoted  to  the 
latter. 

The  commencement  of  the  marital  relation  is  to  be  found,  as 
has  been  already  pointed  out,  in  the  marriage  contract,  the 
proper  law  governing  which,  both  as  to  the  capacity  to  enter 
into  it,  and  as  to  the  formal  and  substantial  validity  thereof, 
has  been  heretofore  sufficiently  considered." 

The  status  once  acquired  under  a  marriage  contract  valid  by 
the  proper  law,  the  marriage  relation  is  recognized  and  continues 
to  exist  in  every  State  whither  the  parties  may  wander,  until  it 
is  terminated  by  the  death  of  one,  or  the  divorce  of  both. 

The  marriage  status  is  essentially  a  mode  of  life,  and  it  is 
peculiarly  appropriate  therefore  that  it  should  be  governed  in 
all  particulars  by  the  law  of  the  place  where  the  parties  live, 
that  is,  by  the  law  of  their  domicil,  and  that  when  their  dom- 
icil  changes  the  law  governing  their  status  should  change 
with  it.*     But  this  principle,  like  most  others  whose  object  is 

1  Ante,  §  76.  »  Ante,  §§  73,  77,  78. 

»  Cook  V.  Cook,  56  Wis.  195,  43  Am.  Rep.  706,  14  N.  W.  33,  86  ;  CUrk 
9.  CUrk.  8  Gush.  (Mass)  385. 


§  80  INCIDENTS   OF  THE  MAERIAGE  STATUS.  173 

the  determination  of  the  "proper  law,"  is  subject  to  the  oper- 
ation of  the  great  exceptions  mentioned  in  the  second  chapter, 
in  which  the  lex  fori  will  be  substituted  for  a  proper  foreign 
law,  whenever  the  policy  or  interest  of  the  forum  or  its  citizens 
demands  such  a  course. 

Hence,  the  fact  that  the  law  of  the  legal  situs  or  domicil  of 
the  parties  gives  the  husband  extraordinary  rights  over  the  per- 
son of  the  wife,  not  authorized  by  the  laws  of  the  State  where 
they  happen  to  be,  such  as  the  right  of  personal  chastisement, 
the  right  to  deprive  her  of  liberty,  etc.,  will  not  justify  the 
husband  in  resorting  to  such  measures  in  the  latter  State.  Its 
courts  and  conservators  of  the  peace  will  interfere  in  such  cases 
to  the  same  extent  as  if  the  parties  were  residents  of  the  forum. 
For  purposes  of  police,  the  law  of  the  actual  situs  of  the  per- 
son will  always  govern.* 

§  80.  Incidents  of  the  Marriage  Status  —  Marital  Rights  in 
Consort's  Property  —  Lands.  —  The  incidents  of  the  marriage 
tie  arise  by  operation  of  law  from  the  marital  relation,  not  from 
the  marriage  contract,  and  are  to  be  determined  and  controlled 
in  general  by  the  same  law  that  controls  that  relation,  the  lex 
domicilii,  unless  the  particular  case  is  one  of  the  great  excep- 
tions. As  has  been  said  by  a  learned  judge  :  ^  "  When  the  con- 
tracting parties  have  entered  into  the  married  state,  they  have 
not  so  much  entered  into  a  contract  as  into  a  new  relation,  the 
rights  and  duties  and  obligations  of  which  rest,  not  upon  their 
agreement,  but  upon  the  general  law  of  the  State,  statutory  or 
common,  which  defines  and  prescribes  those  rights,  duties,  and 
obligations.     They  are  of  law,  not  of  contract." 

Marital  rights  in  the  property  of  the  consort  are  incidents  of 
the  matrimonial  status  implied  by  law^  and  in  this  aspect  may 
be  regarded  as  partaking  of  that  status.  In  another  aspect, 
they  may  be  regarded  as  mutual  transfers  of  interests  in  prop- 

*  Harrison  v.  Harrison,  20  Ala.  629,  56  Am.  Dec.  227,  232  ;  Maguire  v. 
Maguire,  7  Dana  (Ky.),  181,  186  ;  Prosser  v.  Warner,  47  Vt.  667,  19  Am. 
Rep.  132,  134;  Blackinton  v.  Blackinton,  141  Mass.  432,  43&-436.  Se« 
Whart.  Confl,  L.  §§  166,  167. 

1  Appleton,  J.,  in  Adams  v.  Palmer,  51  Me.  481,  483.  See  State  v.  Tutty, 
41  Fed.  753,  758. 


174  INCIDENTS   OF  THE  MAKKIAGE  STATUS.  §  80 

erty  by  operation  of  law.  In  either  aspect  it  will  be  found  that 
they  are  in  general  to  be  determined  and  regulated  by  the  same 
law  that  regulates  the  status  itself,  namely,  the  law  of  the  parties' 
legal  situs  or  domicil,  at  least  if  the  property  in  question  is 
■personalty.^  But  marital  rights  may  arise  not  only  as  incidents 
of  the  marriage  status,  but  also  from  marriage  settlements  or 
contracts  entered  into  between  the  parties.  In  such  cases  the 
rights  of  the  parties  are  regulated  by  their  contract,  not  by 
the  law. 

In  respect  to  immovable  propftr^y,  i<-  ^'°  -^^^IT  qpftled  that  in 
this,  as  in  every  other  tri^nsfer  or  link;  in  thr  rhain  nf  titlo;  the 
lex  situs  of  the  property  in  question  will  control.  Hence,  as  to 
such  property,  if  there  be  no  nuptial  contract  the  lex  situs  will 
govern;  if  there  is  a  nuptial  contract,  it  will  operate  only  so  far 
as  the  lex  situs  permits. 

Thus,  the  dower  right  of  ^^^^^_^jffi  (^"'^  th*^  /'nrt.ft^j  r.f-tlu^ynia. 
band)-tfi  thr*  Inu'ds  nt  thti  cEs^!!!!!"  ^^^^  ^®  determined  and  regu- 
lated  by  the  law  of  the  place  where  the  land  lies,  not  where  the 
parties  live.*  '~~ 

In  Lamar  v.  Scott,*  a  man  domiciled  in  Georgia  died.  He 
had  been  seised  during  the  coverture  of  land  in  South  Carolina, 
by  whose  law  a  seisin  at  any  time  during  the  coverture  sufficed 
to  give  the  wife  dower.  He  had  aliened  the  land  without  join- 
ing his  wife  in  the  deed.  By  the  law  of  Georgia  (his  domicil) 
the  wife  was  dowable  only  in  the  lands  of  which  the  husband 
died  seised.  The  South  Carolina  court  held  that  the  lex  situs 
should  govern,  and  that  the  wife  must  be  endowed  of  the  lands 
there  situated. 

In  Depas  v.  Mayo,^  Depas  of  Louisiana  married  in  Pennsyl- 
vania a  woman  resident  in  Pennsylvania.  They  immediately 
proceeded  to  Louisiana,  where  they  resided  for  several  years. 

»  Post,  §  81. 

8  Ante,  §  12  ;  Lamar  v.  Scott,  3  Strob.  L.  (S.  C. )  562  ;  Newcomer  v.  Orem, 
2  Md.  297,  56  Am.  Dec.  717,  718  ;  Moore  v.  Mayor,  etc.,  8  N.  Y.  (4  Selden) 
110,  59  Am.  Dec.  473,  474  ;  Kneeland  v.  Ensley,  Meigs  (Tenn.),  620,  33  Am. 
Dec.  168,  169 ;  Depas  v.  Mayo,  11  Mo.  314,  49  Am.  Dec.  88,  90-91. 

*  3  Strob.  L.  (S.  C.)  562. 

'11  Mo.  314,  49  Am.  Dec.  88. 


§  81  RIGHTS  IN  PERSONALTY   OP  CONSORT.  175 

Both  parties  at  the  time  of  the  marriage  were  destitute  of  prop- 
erty, but  soon  by  their  joint  exertions  accumulated  a  consider- 
able amount.  By  the  laws  of  Louisiana,  one  half  of  all  property 
acquired  during  the  coverture  belonged  to  the  wife,  and  could 
not  be  disposed  of  by  the  husband.  Afterwards  Depas  and  his 
wife  removed  to  St.  Louis,  and  Depas  purchased  (with  money  in 
part  belonging  to  his  wife  under  Louisiana  law)  a  lot  in  St. 
Louis,  taking  the  title  in  his  own  name.  The  parties  were 
afterwards  divorced  in  Louisiana,  and  the  wife  claimed  one  half 
of  the  St.  Louis  lot  by  way  of  implied  trust.  The  Missouri 
court  held  that  the  Louisiana  law  governed  as  to  the  personalty 
acquired  while  the  parties  were  domiciled  there,  and  that  the 
wife  was  therefore  entitled  to  one  half  of  such  property;  but 
that,  as  to  the  land  in  Missouri,  the  lex  situs  must  govern. 
But  since,  under  Missouri  law,  if  one  purchased  land  with  the 
funds  of  another,  the  conveyance  being  made  to  the  former,  he 
was  deemed  a  mere  trustee  for  the  latter,  the  court  adjudged 
that  Depas  was  a  trustee  for  his  wife  to  the  extent  of  one  half 
the  St.  Louis  lot. 

So,  also,  if  there  be  an  express  ante-nuptial  or  post-nuptial 
contract  touching  the  marital  rights  in  land,  its  effect  and 
validity  must  be  controlled  by  the  lex  situs  of  the  laud,  not 
by  the  law  of  the  place  where  such  contract,  or  the  contract 
of  marriage,  was  entered  into,  nor  by  the  lex  domicilii  of  the 
parties.* 

§  81.  Marital  Rights  in  Fersoneilty  of  Consort  —  In  Absence 
of  Express  Contract.  —  We  have  already  had,  and  will  hereafter 

«  Richardson  v.  De  Giverville,  107  Mo.  422,  17  S.  W.  974  ;  Heine  v.  Ins. 
Co.,  45  La.  Ann.  770,  13  So.  1 ;  Besse  v.  Pellochoux,  73  111.  285,  24  Am. 
Rep.  242  ;  Fuss  v.  Fuss,  24  Wis.  256,  1  Am.  Rep.  180,  181 ;  Castro  v.  lilies, 
22  Tex.  479,  73  Am.  Dec.  277,  281.  But  if  the  contract  is  valid  and  suf- 
ficient under  the  lex  situs,  and  is  capable  of  specific  enforcement  there,  the 
contract  will  confer  an  equitable  title  to  the  land,  without  a  deed.  See  Castro 
V.  lilies,  22  Tex.  479,  73  Am.  Dec.  277,  281 ;  Fuss  v.  Fuss,  24  Wis.  256, 
1  Am.  Rep.  180,  181.  In  Poison  v.  Stewart,  167  Mass.  211,  45  N.  E.  737,  it 
was  held  that  the  law  of  the  place  of  contract,  not  the  lex  situs,  should  con- 
trol in  this  respect.  But  this  case  related  to  a  contract  for  the  relinquishment 
of  marital  rights,  not  for  the  acquisition  of  them.  This  case  ia  discussed 
post.  S  174. 


176 


RIGHTS  IN  PERSONALTY  OF  CONSORT. 


§81 


still  further  have,  occasion  f^  nht^^jfire  an  important  principle 
generallj^applicable  to  personal  property  (except  in  case  of 
conve3^anii£S~aS^otheTvoluntary  transactions  with  respect  to  it), 
namel^^jthat  it  has  its  legal  sitits  atthe  leffaTli}tn%)  nr  dormrilj 
of^e  owner. ^  Marital  rights  in  the  personalty  of  the  consort, 
if  regarded  M  mutual  transfers  of  interests  in  the  property,  are 
transfers  by  operation  of  law,  not  by  the  voluntary  act  of  the 
parties,  and,  like  other  transfers  by  act  of  the  law,  such  as  the 
suecGscion  to  a  dticwdeuL^s  personalty,  are  to  be  tuiJt>i?olIje.d  by 
the  law  of  the  IpgalRrtnn  cff  thr  ownrT^  mil  lij  llin  liiwof  his 
acfual  situs,  nor  bjjhue  law  tyj  th6  aclual"'8itafi  o;f^he  property.^ 

The  law  of  the  domicil  will  govern  the  marital  rights  of  the 
parties  in  personal  property,  not  only  because  of  the  general 
principle  just  pointed  out,  but  also  because  these  rights  are  in- 
cidents of  the  mairiage  status,  and  governed  therefore  by  the 
same  law  that  regulates  that  status  in  other  respects.  And  it 
should  be  particularly  observed  that  the  domicil  whose  law  gov- 
erns in  these  matters  (supposing  the  married  pair  to  have 
changed  their  domicil  several  times)  is  that  domicil  possessed 
by  them  at  the  time  the  particular  marital  right  in  question 
became  vested.  A  mere  contingency  cannot  be  said  to  be  either 
a  transfer,  or  an  incident  of  the  status. 

Hence,  j°i  tr  ri f;h*"f  Tiyq^^'Tfj  ^y  either  in  the  personalty  of 
the  c<>aa^t  upon  his  or  her  death,  ^°  ^^"Mhutee  or  otherwisej 
the  law  of  their  domicil  at  the  time  of  th^^  d^^tll,^'^^^  c:nr\\.Tn\  ^  nnf: 
that  nf  thp.  domir.i)  at  tbft  time  of  the  acquisition  of  the  prop- 
erty, nnr  ijiat  nf  fbft  pinrc  M'hftrft  tho  fjpftth  tnnir  plriiro  Such 
rights 'donot  vest  until  the  death  occurs.  Indeed  this  is  merely 
one  instance  of  the  rule  that  the  law  of  the  last  domicil  of  a 
decedent  controls  the  succession  to  his  personal  property.* 


1  See  ante,  §  14  ;  post,  §§  120  et  seq.  This  applies  to  involuntary  ix&us' 
fers  and  dealings  with  personalty.  If  the  owner  voluntarily  deals  with  it,  as 
by  conveyance,  it  is  the  actual,  not  the  legal,  situs  of  the  owner  that,  for  the 
purposes  of  that  transaction,  gives  the  situs  to  the  property.  Post,  §§  128 
et  seq. 

'  That  the  lex  domicilii  is  the  proper  law  governing  succession,  see  post, 
§§  139  et  seq. 

»  See  White  v.  Tennant,  31  W.  Va.  790,  8  S.  E.  696,  699  ;  Steer's  Succe«- 


§  81  EIGHTS  IN   PERSONALTY  OF  CONSORT.  177 

As  to  those  marital  rights  in  pfiraonalty  whirh  vpat  at  oi 
during  marriage,  such  as  the  husband's  fiQinTnnn  1a^  ^^gHl  to 
the  wife's  chattels  and  choses  in  action^the  law  of  ^he  domicil 
at  the  time  the  right  vests  will  contror  If  the  consort  in  whose 
property  the  right  is  claimed  owned  it  at  the  time  of  the  mar- 
riage, the  marital  right  vests  immediately  upon  the  marriage, 
and  the  law  of  the  parties'  domicil  at  that  time  (that  is,  the 
law  of  the  husband's  domicil  at  that  time)  will  determine  the 
character  and  extent  of  the  rights  in  question.* 

It  is  sometimes  said  that  these  marital  rights  in  property 
owned  by  the  consort  at  the  time  of  the  marriage  are  to  be  con- 
trolled by  the  law  of  the  "matrimonial  domicil,"  which  is  de- 
fined to  be  "the  country  where  the  husband  is  domiciled  at  the 
time  of  the  marriage,  or  in  which  he  intends  to  settle  imme- 
diately/ after  the  maiviage."  ^ 

But  it  is  submitted  that  to  hold  the  country  where  the  hus- 
band intends  to  settle  (the  factum  not  combining  with  the  ani- 
mus)  to  be  his  domicil,  whether  "  matrimonial "  or  otherwise, 
is  violative  of  one  of  the  leading  principles  governing  the  ac- 
quisition of  a  domicil  of  choice.      This  doctrine  has  recently 

sion,  47  La.  Ann,  1551,  18  So.  503  ;  Succession  of  Hernandez,  46  La.  Ann. 
962,  24  L.  R.  A,  831  ;  Hairston  v.  Hairston,  27  Miss.  704,  61  Am.  Dec.  530  ; 
Hegeman  r.  Fox,  31  Barb.  (N.  Y.)  475.     See  post,  §  139  et  seq. 

*  Mason  v.  Homer,  105  Mass.  116  ;  Graham  v.  Bank,  84  N.  Y.  393,  400, 
88  Am.  Rep.  528  ;  Kneeland  r.  Ensley,  Meigs  (Tenn.),  620,  33  Am.  Dec.  168, 
169 ;  Newcomer  v.  Orem,  2  Md.  297,  56  Am.  Dec.  717,  718  ;  Fuss  v.  Fuss, 
24  Wis.  256,  1  Am.  Rep.  180.  See  Ford  v.  Ford,  2  Mart.  N.  8.  (La.)  574, 
14  Am.  Dec.  201,  203 ;  Townes  v.  Durbiu,  3  Met.  (Ky.)  352,  77  Am.  Dec.  176. 
The  lex  celebrationis  of  the  marriage,  as  such,  has  nothing  to  do  with  the 
question,  for  the  sole  eflFect  of  the  executed  contract  of  marriage,  standing 
alone,  is  to  create  the  marriage  relation  or  status.     See  ante,  §§  76  et  seq. 

6  Story,  Confl.  L.  §  193  ;  Fuss  v.  Fuss,  24  "Wis.  256,  1  Am.  Rep.  180,  181; 
Besse  r,  Pellochoux,  73  111.  285,  24  Am.  Rep.  242,  246,  247-248  ;  Ford  v. 
Ford,  2  Mart.  N.  s.  (La.)  574,  14  Am.  Dec.  201,  203 ;  Larquie  v.  Larquie,  40 
La.  Ann.  457,  4  So.  335,  336  ;  Champon  v.  Champon,  40  La.  Ann.  28,  3  So. 
397,  399;  Routh  v.  Routh,  9  Rob.  (La.)  224,  41  Am.  Dec.  326;  Allen  ». 
Allen,  6  Rob.  (La.)  104,  39  Am.  Dec.  553  ;  Le  Breton  v.  Nouchet,  3  Mart. 
(La.)  60,  5  Am.  Dec.  736  ;  Harral  v.  Harral,  39  N.  J.  Eq.  379,  51  Am.  Rep. 
17,  23  ;  Castro  r.  lilies,  22  Tex.  479,  73  Am.  Dec.  277 ;  State  v.  Barrow,  14 
Tex.  179,  65  Am.  Dec.  109. 

12 


178  HIGHTS   IN   PERSONALTY   OF   CONSORT.  §  81 

been  disapproved  in  England,  where  it  has  been  adjudged  that 
there  is  no  such  thing  as  a  "  matrimonial  domicil."' 

A  somewhat  similar  question  has  arisen  with  respect  to  prop- 
erty acquired  by  either  consort,  while  the  married  pair  are 
actually  in  transitu  from  one  State  to  another,  having  abandoned 
one  domicil  and  not  yet  reached  the  other.  It  has  been  held  in 
several  cases,  in  analogy  to  the  theory  of  the  "matrimonial 
domicil,"  that  the  law  of  the  intended  domicil  should  govern. 
It  will  not  be  attempted  to  reconcile  these  cases  with  prin- 
ciple.^ 

In  general.^with  respect  to  aftfr  nrquired  prppprtyj  the 
marital  rights  will  depend  Upon  the  law  ff  th^  ftftunl  domicil 
of  the  parties  at  the  time  of  such  acquisition,  for  at  that  time, 
if  at  all,  the  rights  vest.^ 

It  must  be  constantly  remembered  however  that  these  rules 
for  the  determination  of  the  ' '  proper  law "  are  subject  to  the 
general  exceptions  discussed  in  the  second  chapter,  and  that 
the  proper  law  will  be  substituted  by  the  lex  fori  (the  law  of  the 

«  Le  Mesurier  v.  Le  Mesurier,  App.  Cas.  517,  11  Rep.  527  [1895].  It 
should  be  further  observed  that  if  the  theory  is  correct  that  the  law  of  the 
intended  domicil  should  control  the  marital  rights  of  the  parties,  then  there 
must  be  substituted  for  the  doctrine  of  the  transfer  of  these  interests  by  opera- 
tion of  law,  or  as  an  incident  of  the  marriage  status,  that  of  a  transfer  by  tacit 
or  implied  contract,  for  it  is  only  upon  that  theory  that  the  law  of  an  intended 
domicil  can  govern.  Yet  Judge  Story,  who  is  one  of  the  strongest  advocates 
of  the  •'  matrimonial  domicil,"  has  also  placed  the  seal  of  his  disapproval  upon 
the  theory  of  any  implied  or  tacit  contract  with  reference  to  marital  rights. 
Story,  Confl.  L.  §  190.  See  Hairston  v.  Hairston,  27  Miss.  704,  61  Am.  Dec. 
530.  And  even  Story  admits  that  if  the  property  is  acquired  ajier  marriage, 
the  marital  rights  are  governed  by  the  law  of  the  actual  domicil  at  the  time 
of  the  acquisition.  Story,  Confl.  L.  §  187  ;  State  v.  Barrow,  14  Tex.  179, 
65  Am.  Dec.  109  ;  Castro  v.  lilies,  22  Tex.  479,  73  Am.  Dec.  277  ;  Fuss  v. 
Fuss,  24  Wis.  256,  1  Am.  Rep.  180. 

'  See  Ford  v.  Ford,  2  Mart.  n.  s.  (La.)  574,  14  Am.  Dec.  201  ;  State  v. 
Barrow,  14  Tex.  179,  65  Am.  Dec.  109. 

8  McLean  v.  Hardin,  3  Jones'  Eq.  (N.  C.)  294,  69  Am.  Dec.  740  ;  State  v. 
Barrow,  14  Tex.  179,  65  Am.  Dec.  109;  Ford  v.  Ford,  2  Mart.  N.  s.  (La.) 
574,  14  Am.  Dec.  201  ;  Castro  v.  lilies,  22  Tex.  479,  73  Am.  Dec.  277  ;  Fuss 
r.  Fuss,  24  Wis.  256,  1  Am.  Rep.  180;  Murphy  v.  Murphy,  5  Mart.  (La.)  83, 
12  Am.  Dec.  475;  Hicks  v.  Pope,  8  La.  554,  28  Am.  Dec.  142  ;  Succession 
of  Packwood,  9  Rob.  (La.)  438,  41  Am.  Dec.  341. 


§  82  CONTRACT  TOUCHING   MARITAL   RIGHTS.  179 

actual  situs  of  the  property)  whenever  the  interest  or  policy  of 
the  forum,  or  the  welfare  of  its  own  citizens,  demand  it.' 

Thus,  in  Smith  v.  McAtee,"  upon  a  partition  of  land  in 
Maryland,  the  land  was  sold,  the  proceeds  in  part  belonging  to 
a  woman  who,  with  her  husband,  resided  in  Illinois.  By  the 
law  of  Illinois  the  wife's  personalty  vested  in  the  husband  abso- 
lutely and  was  liable  for  his  debts.  By  the  law  of  Maryland 
it  was  the  property  of  the  wife,  free  from  the  husband's  debts. 
A  creditor  of  the  husband  attached  the  fund  in  Maryland,  but 
it  was  held  that  the  lex  fori  should  govern,  on  the  ground  that 
to  enforce  the  Illinois  law  would  contravene  the  established 
policy  of  Maryland.^^ 

§  82.  Same  —  Express  Contract  touching  Marital  Rights. 
—  If  there  be  a  contract  T^Q^^^»^oQTlTvMo>>3,pfl  ar>A  wifp.  t,nnr.bipg  tho 
mnritTil  rightn  nf  ^nrh  itLjLJifijproperty  of  the  other,  and  such  con- 
tract embraces  only  personalty  owned  at  the  time  of  the  marriage, 
the  contract,  if  valid  by  the  law  of  the  place  where  it  is  maC 
will  govern  as  to  the  personalty  owned  at  that  time,  wherever  it 
be  actually  situateHT'  But  in  auoh  caco,  ao  to  pui'auua,lLy  Lho'i'e- 
after  acquired,  Wie  contract  not  embracing  it,  the  marital  rights 
will  be  determined  by  the  same  law  as  if  there  had  been  no  con- 
tract, that  is,  by  the  law  of  the  actual  domicil  at  the  time  of 
the  acquisition.* 

If  the  contract  embraces  personalty  then  owned  or  thereafter  to 
be  acquired  by  the  parties,  and  is  valid  where  made,  it  will  fur- 

9  Story,  Confl.  L.  §  189  ;  Le  Breton  v.  Nouchet,  3  Mart.  (La.)  60,  5  Am. 
Dec.  736  ;  McLean  v.  Hardin,  3  Jones'  Eq.  (N.  C.)  294,  69  Am.  Dec.  740; 
Smith  V.  McAtee,  27  Md.  420,  92  Am.  Dec.  641. 

10  27  Md.  420,  92  Am.  Dec.  641. 

11  It  is  the  more  remarkable  that  the  court  should  have  followed  the  lex 
fori  instead  of  the  proper  law,  since  the  attaching  creditor  was  a  citizen  of 
Maryland,  while  the  married  woman  was  not.  The  decision  was  based  entirely 
upon  the  State's  policy. 

1  Subject  to  the  great  exceptions  to  the  proper  law.  See  Story,  Confl.  L. 
§§  183  et  seq. ;  Castro  i;.  lilies,  22  Tex.  479,  73  Am.  Dec.  277;  Fuss  v.  Fuss,  24 
Wis.  256,  1  Am.  Rep.  180 ;  Wilder's  Succession,  22  La.  Ann.  219,  2  Am. 
Rep.  721. 

«  Story,  Confl.  L.  §§  183,  184  et  seq.  ;  Fuss  v.  Fuss,  24  Wis.  256,  1  Am 
Rep.  180  ;  Castro  v.  lilies,  22  Tex.  479,  73  Am.  Dec.  277. 


180  BIGHTS  AND  DUTIES  OP  PABENTS.  §  83 

nish  the  rule  by  which  their  marital  rights  will  be  determined 
throughout  their  wedded  life,  though  they  subsequently  remove 
to  or  acquire  property  in  another  State,  where  such  a  contract, 
if  made  there,  would  not  be  upheld.' 

§  83.  Rights  and  Duties  of  Parents  towards  Children.  —  The 
rights  and  duties  of  parents  with  respect  to  their  children  may 
be  regarded  as  an  incident  of  the  marriage  relation,  or  the  rela- 
tion of  parent  and  child  may  be  treated  as  a  distinct  status  or 
condition.     In  either  aspect  the  result  is  the  same. 

So  far  as  the  rights  of  personal  control,  treatment,  or  chas- 
tisement are  concerned,  these  are  usually  considered  questions 
of  local  policy  or  police,  the  extent  of  which  must  be  determined 
and  fixed  in  each  State  by  its  own  laws,  as  to  all  persons  within 
its  borders,  regardless  of  their  legal  situs  or  domicil.^  No  State 
could  be  justly  expected  to  permit  persons  within  its  limits  to 
violate  its  police  or  criminal  laws,  because  they  are  given  a  right 
so  to  act  by  the  law  of  their  legal  situs  or  domicil.  Comity  is 
not  to  be  carried  so  far.  It  is  a  case  for  the  substitution  of  the 
proper  law  by  that  of  the  forum  and  actual  situs  of  the  party. ^ 

But  save  ^^\_fnrh  v'^'^flpt^''^""^  ',  *'^'"  [jo^'^^nT  pi-^nr.ipia  is 

that  the  law  of  the  Zeffa?_sitfllR  ^^  iliiinii  11  i'l  Ili<"  ^^piiipiijm  " 
governing  the  relation  of  parenj;  a"'^  r\\^M\^  j»st  as  in  other  cases 
of  status. 

Thus  where  a  mother  domiciled  in  England  had  a  child  born 
in  Scotland,  which  by  the  Scotch  law  she  was  bound  to  support 
(but  not  by  the  English  law),  the  Scotch  Court  of  Sessions  re- 
fused to  hold  her  liable  therefor,  on  the  ground  that  ''she  has 
the  status  of  an  English  woman,  and  it  is  the  law  of  the  coun- 
try of  her  domicil  that  must  determine  her  obligations  now."  • 

»  Fuss  V.  Fuss,  24  Wis.  256,  1  Am.  Rep.  180  ;  Castro  r.  lilies,  22  Tex. 
479,  73  Am.  Dec.  277;  Le  Breton  v.  Miles,  8  Pai.  Ch.  (N.  Y.)  261  ;  Decouche 
V.  Savetier,  3  Johns.  Ch.  (N.  Y. )  190,  8  Am.  Dec.  478  ;  Schefferling  v.  HufiF- 
man,  4  Ohio  St.  241,  62  Am.  Dec.  281  ;  McLeod  v.  Board,  30  Tex.  238,  94 
Am.  Dec.  301  ;   Young  v.  Templeton,  4  La.  Ann.  254,  50  Am.  Dec.  563. 

1  Woodworth  v.  Spring,  11  Allen  (Mass.)  321;  Jac.  Dom.  §  33.  See 
Blackinton  v.  Blackiuton,  141  Mass.  432,  435-436. 

2  See  Whart.  Confl.  L.  §§  166,  167.  See  also  De  Boimont  t>.  Penniman, 
10  Blatchf.  436,  for  other  applications  of  the  lex  fori. 

»  Macdonald  v.  Macdonald,  8  Bell  &  Murray  (2d  series),  331-334;  Whart. 
Confl.  L.  §  168. 


5  53  RIGHTS   AND   DUTIES   OF  PARENTS.  181 

The  legitimacy  of  the  issue  has  no  necessary  connection  with 
the  status  of  marriage,  since  in  some  States  children  may  be 
legitimate  without  an  intermarriage  of  the  parents,  nor  is  it  a 
necessary  incident  of  the  relation  of  parent  and  child,  sinca 
that  relation  may  exist  without  it.  The  truth  is,  legitimacy 
forms  a  distinct  instance  of  status,  and  as  such  will  be  treated 
separately  in  a  subsequent  chapter. 


182  CAUSES  FOB  DIYORCJE.  §  84 


CHAPTER  VII. 

DISSOLUTION  OF  THE  MARRIAGE  STATUS  BY  DIVORCE. 

§  84.  Causes  for  Divorce.  —  The  supreme  importance  of  the 
marriage  status  to  the  State  as  well  as  to  the  parties  has  been 
adverted  to.  The  interest  of  the  State  in  this  relation  leads  it 
not  only  to  demand  that  it  should  not  be  entered  into  unad- 
visedly or  lightly,  and  to  prescribe  with  great  care  who  may  or 
may  not  enter  into  the  contract,  as  well  as  the  ceremonies  ac- 
companying its  solemnization,  but  also  to  prohibit  its  dissolu- 
tion at  the  mere  will  or  caprice  of  the  parties.  The  consent  of 
the  State  thereto  must  first  be  obtained  through  its  legislature 
or  its  courts,  and  only  for  the  particular  causes  assigned  by  the 
]fl,w-making  power. 

If  the  parties  abandon  their  domicil  in  one  State  and  acquire 
a  residence  in  another,  the  interest  of  the  first  State  in  the  mar- 
riage status  ceases;  that  interest  is  now  transferred  to  the  sec- 
ond State,  which  will  see  to  the  preservation  or  regulation  of  the 
relation  with  the  same  zeal  that  inspired  the  former  State  so 
long  as  the  parties  remained  domiciled  there.  The  latter  State 
will  now  permit  the  status  to  be  dissolved  only  for  causes  which 
seem  to  it  proper,  and  only  with  its  consent  (through  its  courts). 
For  the  marriage  relation  is  essentially  a  status,  a  mode  of  life, 
and  just  as  the  incidents  thereof  are  determined  by  the  law  of 
the  place  where  the  parties  live  (lex  domicilii),  so  also  the  dis- 
solution thereof  is  to  be  regulated  by  the  same  law. 

TTon^o  if  jg  g  wftll  established  general  principle  of  private 
intrrnati^T^^l  ^^^  thfit  a  djvorceobtaiuod  in  a-  State  other  than 
the  domicil  is  of  no  biading.effecnn  Other  States,  as  will  pres- 
ently  appear.  ~  ~  ~" 

The^same  principle  applies  to  the  causes  for  which  a  divorce 
Is  asked  for.     If  the  parties  have  always  resided  in  the  same- 


§  84  CAUSES   FOR   DIVORCE.  183 

State,  and  have  never  lived  elsewhere,  no  difficulty  arises.  It 
is  manifest  that  the  State  where  they  have  always  lived  (their 
only  domicil)  should  be  the  State  where  the  divorce  is  prose- 
cuted, and  upon  its  municipal  law  must  depend  the  question 
whether  or  not  there  is  sufficient  ground  to  dissolve  the  mar- 
riage relation.^ 

But  if  the  parties  since  the  marriage  have  lived  in  several 
States,  a  question  may  arise  as  to  which  law  shall  determine 
whether  there  is  ground  for  divorce.  So  also,  if  the  act  on  ac- 
count of  which  the  divorce  is  asked  occurs  in  another  State,  by 
whose  law  it  is  no  cause  of  divorce,  though  constituting  a  suffi- 
cient cause  in  the  State  of  the  divorce  forum,  or  vice  versa; 
especially  if  the  parties  at  the  time  of  the  act  were  domiciled 
in  the  State  where  it  was  done,  one  or  both  of  them  removing 
afterwards  to  the  State  of  the  forum.  What  law  should  prop- 
erly determine  such  points  has  been  the  subject  of  considerable 
debate.* 

Upon   priacipl*^,    ^^   ^^^n1/l — gooaa — clear — that — thgouestion 

wTiPfliPiw>7-    anf    ^    pnrfinnlftr    gr>f.    or    nTy^iaainn    ia    a  grnuSTTrtr 

divorc«.^ould  be  determined  by  the  rules  of  the  mupi^ipgl  law 
of  thft^fjiynrfft  forum.  The  iact  that  the  alleged  offense  occurs 
m  another  State,  or  even  that  the  parties  were  domiciled  in  the 
latter  State  when  the  offense  occurs  there,  should  not  be  suffi- 
cient, in  the  absence  of  explicit  legislation  of  the  forum  to  the 

1  Hunt  V.  Hunt,  72  N.  Y.  217,  228,  28  Am.  Rep.  129. 

2  Various  theories  will  be  found  advocated  in  the  following  cases,  some 
holding  that  the  law  of  the  place  where  the  marriage  contract  is  entered  into 
should  regulate  the  causes  for  dissolving  the  status  ;  others  holding  that  the 
law  of  the  place  where  the  offence  is  committed  should  prevail  ;  others  are  in 
favor  of  the  law  of  the  domicil  of  the  parties  at  the  time  the  oflFence  was  com- 
mitted ;  and  others  in  favor  of  the  law  of  the  parties'  domicil  at  the  time  the 
divorce  is  sought.  See  LoUey's  Case,  2  CI.  &  F.  567  ;  Arrington  f.  Arrington, 
102  N.  C.  491,  9  S.  E.  200,  207  ;  Norris  v.  Norris,  64  N.  H.  523,  15  Atl.  19  ; 
Prosser  v.  "Warner,  47  Vt.  667,  19  Am.  Rep.  132,  134  ;  Harteau  v.  Harteau, 
14  Pick.  (Mass.)  181,  25  Am.  Dec.  372 ;  Watkins  v.  Watkins,  135  Mass.  83  ; 
Colbum  V.  Colburn,  70  Mich.  647,  38  JT.  W.  607  ;  Lyon  v.  Lyon,  2  Gray 
(Mass.),  367;  Cook  v.  Cook,  56  Wis.  ]95,  43  Am.  Rep.  706,  14  N.  W.  33  ; 
Hai-ding  v.  Alden,  9  Greenl.  (Me.)  140,  23  Am.  Dec.  549;  Shreck  v.  Shreck, 
32  Tex.  578,  5  Am.  Rep.  251 ;  Jones  v.  Jones,  67  Miss.  195,  6  So.  712,  713. 


184         PROCEEDINGS  IN   PERSONAM  AND   IN  REM.        §  85 

contrary,  to  deprive  its  courts  of  the  full  and  complete  right  to 
preserve,  regulate,  or  dissolve  the  marriage  status  of  the  citizens 
of  the  forum  in  accordance  with  its  laws.' 

But  if  the  object  of  a  suit  is  not  to  dissolve  a-marriago  status 
valid  in  thebegmning,  but  ^opronounce  the  union  invalid  ab 
initio  for  a  cause  renderinpf  th^  rnftmagp  rnntr-nrt.  votdable,  the 
principles  by  which  to  determine  the  ^^  proper  law  '^  are  differ- 
ent.     In~8uch  cases  the  lex  celebratioais  of  tl 


tract  is  the  proper  law.* 

In  Conclusion,  it  should  be  observed,  that  the  mere  fact  that 
the  cause  of  divorce  arises  in  the  State  where  the  divorce  is  ob- 
tained (neither  party  being  domiciled  there  at  the  time  of  the 
divorce),  will  not  suffice  to  make  the  decree  of  divorce  binding 
in  other  States,  although  by  the  municipal  law  of  the  divorce 
forum  jurisdiction  is  thereby  conferred  upon  its  courts  inde- 
pendently of  the  domicil  of  the  parties.  Domicil  (of  one  of  the 
parties  at  least)  is  an  essential  prerequisite  to  give  a  divorce 
exterritorial  effect.* 

§  85.  Proceedings  in  Personam  and  in  Rem  distinguished. 
—  As  preliminary  to  a  discussion  of  the  principles  governing 
the  effect  of  foreign  divorce,  it  is  necessary  to  observe  the  im- 
portant distinctions  between  judicial  proceedings  in  personam 
and  in  rem. 

The  purpose   of  a  proceeding   in  personam  is   to   impose, 

»  Hunt  V.  Hunt,  72  N.  Y.  217,  228, 28  Am.  Rep.  129 ;  Kinnieri;.  Kinnier, 
45  N.  Y.  535,  539,  6  Am.  Rep.  132  ;  Pennoyer  v.  Neff,  95  U.  S.  714,  734-735  ; 
People  V.  Dawell,  25  Mich.  247,  12  Am.  Rep.  260,  272 ;  Colburn  v.  Colburn, 
70  Mich.  647,  38  N.  W.  607,  608  ;  Shreck  v.  Shreck,  32  Tex.  578,  5  Am. 
Rep.  251  ;  Harding  v.  Alden,  9  Greenl.  (Me.)  140,  23  Am.  Dec.  549;  Hood 
V.  Hood,  11  Allen  (Mass.),  196,  87  Am.  Dec.  709  ;  Arlington  v.  Arrington, 
102  N.  C.  491,  9  S.  E.  200,  207.  But  see  Norris  v.  Norris,  64  N.  H.  523, 
15  Atl.  19  ;  Prosser  v.  Warner,  47  Vt.  667,  19  Am.  Rep.  132,  134  ;  Harteau 
V.  Harteau,  14  Pick.  (Mass.)  181,  25  Am.  Dec.  372.  In  Massachusetts  and 
Illinois  there  are  statutes  more  or  less  affecting  this  general  rule.  See  Lyon 
V.  Lyon,  2  Gray  (Mass.),  367  ;  Smith  v.  Smith,  13  Gray,  209 ;  Watkins  t;. 
Watkins,  135  Mass.  83  ;  Chapman  u.  Chapman,  129  111.  386,  21  N.  E.  806. 

*  Ante,  §  78. 

'  Yan  Fossen  v.  State,  37  Ohio  St.  317,  41  Am.  Rep.  507,  508.  See  po«t 
§§  &9  et  seq. 


§  86        PBOCBEDINGS  IN  PERSONAM   AND  IN  REM.         185 

through  the  judgment  or  decree  of  the  court  whose  aid  is  in- 
voked, some  responsibility  or  liability  directly  upon  the  person 
of  the  defendant.  Of  this  character  are  criminal  prosecutions, 
suits  to  compel  a  defendant  to  perform  some  specific  act,  or 
actions  to  fasten  a  general  pecuniary  liability  upon  him.  A 
proceeding  in  rem,  on  the  other  hand,  is  aimed  not  at  the  per- 
son of  the  defendant,  but  at  his  property  or  some  other  thing 
within  the  power  and  jurisdiction  of  the  court. 

Most  important  consequences  flow  from  the  distinction  be- 
tween these  modus  of  procedure.  The  fourteenth  amendment 
to  the  federal  constitution  provides  that  no  State  shall  deprive 
any  person  of  life,  liberty,  or  property  without  due  process  of 
law ;  that  is,  without  notice  and  a  reasonable  opportunity  to  be 
heard  in  his  own  behalf.  But  the  notice  required  under  this 
constitutional  provision  is  very  different  in  the  two  modes  of 
procedure. 

In  r^or'^'^^'^g"  iix^ersonam,  no  judgment  or^d^cree  against 
a  drfnndwnt  ii  yfilifl  nnlftnn  h^  has  been  pejaonally  oorited  with 
nntifift  of  ^h^  a-^.tjon  or  suit  wijjiin  the  territorial  limits  of  the 
court's  jurisdiction,  or  has  volu"*^<»Tlly  <ippQ^^o^  This  much  / 
is  always  required,  and  in  some  instances  even  more.^  But  in 
prr>/>PP^iTigg^t>«-^w  i£.jJrt(^  '»'<'s_^e  withju  the  court'sjurJadictiqin' 
duCLprocess  of  law  does  J^f)^  ^c|]nanf}  fTia±  antngr^iiotirA-ftf  the 
suit  shoulaB^^-6erSe^-Hpoi]_t^  defendant  personall^»_Even 

tboiTg^b^bft^TiQii-rgsTj^ajii:  jvMiift  fnriTrrTpfeg^^ft^-ipfeSPSX^  that 

he  keeps  in  touch  with  his  propertY«jvhereverit  may  be  sjjaiated, 
and  that  he  will  be  straightway  informed  if  any  peril  threatens 
it.  Hence  in  such  case  the  law  contents  itself  with  requiring 
a  general  proclamation  or  publication  of  the  fact  that  a  suit  has 
been  instituted  with  respect  to  the  defendant's  property,  or  with 
a  personal  notice  served  upon  him  outside  the  limits  of  the 
court's  territorial  jurisdiction. 

In  either  form  of  procedure,  if  there  has  been  no  such  due 
process  of  law  as  is  demanded  under  the  federal  constitution, 
the  court  is  without  jurisdiction,  and  its  decree  is  absolutely 
void  within  the  limits  of  its  own  State  as  well  as  elsewhere. 

1  As  in  the  trial  of  felony  cases,  in  which  no  material  step  can  validlj 
be  taken  unless  the  accused  is  personally  present  in  court 


H.. 


186  EFFECT   OF   FOREIGN  JUDGMENTS.  §  86 

The  leading  case  of  Pennoyer  v.  Neff  *  furnishes  an  excellent 
illustration  of  these  principles.  In  that  case,  an  attachment 
was  issued  in  Oregon  upon  an  order  of  publication  against  prop- 
erty there  belonging  to  a  non-resident  defendant.  An  Oregon 
statute  permitted  the  court  in  such  cases  to  subject  the  prop- 
erty/, and  if  that  proved  insufficient  to  satisfy  the  debt,  to  make 
a  personal  decree  for  the  balance  against  the  absent  debtor. 
The  court  pursued  this  course,  and  the  case  was  carried  on 
appeal  to  the  United  States  Supreme  Court.  That  court  held 
that,  so  far  as  the  attachment  of  the  property  was  concerned, 
the  proceeding  was  in  rem,  and  that  the  presence  of  the  prop- 
erty there  gave  the  court  jurisdiction,  though  the  owner  was  a 
non-resident,  had  not  appeared,  and  had  been  notified  of  the 
pendency  of  the  cause  no  otherwise  than  by  advertisement  in  a 
newspaper.  But  it  was  also  held  that  the  personal  decree  for 
the  balance  of  the  money  due  by  the  non-resident  defendant 
was  beyond  the  court's  jurisdiction,  and  that  the  statute  au- 
thorizing such  a  course  contravened  the  federal  constitution. 

§  86-  Exterritorial  Effect  of  Foreign  Judgments  and  De- 
crees. —  The  federal  constitution,  in  its  requirement  that  no 
State  shall  deprive  any  person  of  life, "liberty,  or  property  with- 
out due  process  of  law,  is  no  stricter  than  are  the  principles  of 
private  international  law,  when  those  principles  begin  to  oper- 
ate upon  judicial  proceedings.  While  the  above  mentioned 
clause  of  the  federal  constitution  is  a  part  of  the  municipal 
law  of  each  State  of  the  Union  and  operates  intra-territorially 
upon  domestic  proceedings,  the  rules  of  private  international 
law  come  into  play  only  when  the  inquiry  extends  to  the  effect 
to  be  given,  in  one  State  or  country,  to  the  judicial  proceedings 
of  another.  But  the  federal  constitution  and  the  rules  of  pri- 
vate international  law  both  unite  in  declaring  that,  in  order  to  a 
valid  exercise  of  jurisdiction  by  a  tribunal,  there  must  be  given 
to  the  defendant  a  reasonable  notice  and  opportunity  to  defend 
himself;  there  must  be  **due  process  of  law."  What  consti- 
tutes such  due  process  in  respect  to  proceedings  in  personam  as 
well  as  in  rem  has  already  been  shown. 

2  95  U.  S.  714.  See  also  Alley  v.  Caspar!,  80  Me.  234,  6  Am.  St.  Rep. 
185,  note. 


§86 


EFFECT   OF   FOREIGN  JUDGMENTS. 


187 


Hence  in  orderjhat  effect  may  he  given  abroad  to  a.  judgment 
in  rsrnoiin  personam,  the  coart  rendering  the  ju3gment  in 
question  must  have  jurisdiction  of  the  cause,  and  such  juriadic- 
tion  of  the  defendant  or  of  the  property  threatened  as  "aue 
process  of  law  "  demands,  it  the  judgttiuiil  ui  dccrco  bo  in  rdnij^ 
it  is  only  necessary  that  the  res  be  within  the  court's  jurisdic- 
tion  md  Llial  a  general  uiiblication  ot  notice  of  the  snitZha 
given.  If  in  personam,  it  is  essential  that  fhp.  rnnrt  _^hfrn^c\ 
have  obtained  jurisdiction  of  the  defendant's  person,  either  by 
his  voluntary  appearance  and  submission  to  the  court's  jurisdic^L 
tion,  or  by  a  personal  service  of  process  "p""  bim  ^fjjvinflio 
territorial  limits  of   the   C"iir^'«    Qnfbnrify 

If  these  conditions  are  complied  with,  the  foreign  judgment 
-will  in  general  be  given  effect  everywhere  ;  if  not  complied 
"with,  the  judgment  or  decree,  even  though  valid  where  ren- 
dered, will  in  general  be  regarded  as  void  and  of  no  effect  out- 
side the  jurisdiction  where  it  is  rendered. 

But,^suppe»iug  the  -«aiiiitions  complied  with,  it  does  not 
necessaril}^  follow  that  the  foreign^jtldgment  or  dooroo  will  be 
gi-p-Qja-^^^rr^ifofit^^  pfFftf»f:  in  nt.hf^f  States.  In  case  th^  j'ldgm^nt 
or  decree  be  in  rem,  it  is  true,  the  effect  given  to  it  is  generally 
conclusive  everywhere,  if  the  res  is  within  the  court's  jurisdic- 
tion,Torthe  sovereignty  of  a  State  over  everything  within  its 
limits  is  supreme,  and  will  usually  be  respected  in  other 
•States.^  "^ '     "^ 

But  with  respe^tJ;Q,.j«d:gmeuts  aTrd^ecrees  in  personam^axmh. 
as  judgments  for  money,  private  internatiTTrrai-lftw-gogs"^  fur- 
fther  tha^nto~declare  them  a  yrima  facie  evidence  of  indebted- 
ness,  permitting  the  merits  of  the  cause  of  action  to  be  again 
inquired  into,  at  least  where  such  is  the  eiiect  that  would  be 

1  This  is  universally  conceded  in  the  case  of  decrees  in  admiralty.  See 
The  Rio  Grande,  23  "Wall.  458  ;  Williams  v.  Armroyd,  7  Cr.  423  ;  Gelstou  t;. 
Hoyt,  3  Wheat.  246 ;  China  Mat.  Ins.  Co.  v.  Force,  142  N.  Y.  90  ;  Street 
i;.  Ins.  Co.,  12  Rich.  (S.  C.)  13.  And  generally  also  in  attachment  and  other 
proceedings  m  rem.  Freeman  v.  Alderson,  119  U.  S.  185  ;  Pennoyerr.  NeflF, 
-95  17.  S.  714;  Green  v.  Van  Buskirk,  7  Wall.  139;  Noble  v.  Oil  Co.,  79 
Penn.  St.  354  ;  Amdt  v.  Amdt,  15  Ohio,  33.  But  see  Hornthall  v.  Burwell, 
109  N.  C.  10,  13  S.  E.  721 ;  Singer  Mfg.  Co.  v.  Fleming,  39  Neb.  679,  42  Am 
St.  Rep.  613. 


188  EFFECT   OF  FOREIGN  JUDGMENTS.  §  86 

given  to  foreign  judgments  in  the  State  where  the  judgment  in 
question  was'rendereHT'         ~~ -— 

Ss  between  the  States  of  this  Union,  the  comity  enjoined  by 
private  international  law  touching  the  effect  to  be  given  to  for- 
eign judgments  is  reinforced  and  supplemented  by  the  clause  in 
the  federal  constitution  providing  that  full  faith  and  credit  shall 
be  given  in  each  State  to  the  judicial  proceedings  of  every  other 
State,*  and  by  the  act  of  Congress,  made  in  pursuance  thereof, 
declaring  that  the  judgments  of  the  courts  of  each  State  shall 
have  the  same  faith  and  credit  in  other  States  as  they  have  in 
the  States  where  they  are  rendered.* 

Under  these  provisions,  the  judgments  and  decrees  of  the 
courts  of  one  State,  if  valid  and  conclusive  there,  are  for  the 
most  part  valid  and  conclusive  iu  every  other  State  of  the  Union, 
Without  them  the  judgments  of  each  State  would  be  regarded 
as  strictly  foreign  judgments  in  every  other  State.* 

But  it  is  to  be  observed  that  it  is  not  the  design  of  these  pro- 
visions to  confer  any  new  power  upon  the  States,  but  simply  to 
establish  a  just  rule  of  comity  by  which  may  be  regulated  the 
effect  of  their  admitted  jurisdiction  over  the  persons  and  things 
within  their  borders.     They  do  not  propose  to  make  the  judg- 

'  Hilton  V.  Guyot,  159  U.  S.  113.  It  is  probably  otherwise  if  foreign 
judgments  are  given  conclusive  effect  in  the  State  where  the  particular  judg- 
ment in  question  is  rendered.  Ritchie  v.  McMullen,  159  U.  S.  235  ;  Wunstan 
V.  Higgins,  138  N.  Y.  70 ;  Rankin  e.  Goddard,  55  Me.  389.  But  this  rule  is 
subject  to  qualification  where  the  foreign  judgment  is  based  on  matters  of 
mere  local  policy.  See  Hohner  v.  Gratz,  50  Fed.  369  ;  De  Brimont  v.  Penni- 
man,  10  Blatchf.  436.  Upon  the  effect  of  foreign  judgments,  see  a  learned  and 
full  discussion  in  Story,  Conil.  L.  §§  598  et  seq.,  and  notes. 

8  U.  S.  Const.  Art.  4,  §  1. 

*  U.  S.  Rev.  Stats.  §  905. 

6  Slack  V.  Perrine,  164  U.  S.  452;  McElmoyle  v.  Cohen,  13  Pet.  312; 
Carpenter  i;.  Strange,  141  U.  S.  87  ;  Guthrie  v.  Lowry,  84  Penn.  SL  533 ; 
Elsasser  v.  Haines,  52  N.  J.  L.  10,  18  Atl.  1095  ;  Edwards  v.  Jones,  113  N.  C. 
453,  18  S.  E.  600  ;  Dorsey  v.  Maury,  10  Sm.  &  M.  (Miss.)  298.  These  pro- 
visions apply  not  only  to  judgments  of  State  courts,  but  also  to  the  judgments 
of  the  federal  courts,  when  litigated  in  the  State  courts.  Pennoyer  v.  Neff, 
95  U.  S.  714  ;  Southern  Ins.  Co.  v.  Hardware  Co.  (Tex.)  19  S.  W.  615  ; 
Barney  v.  Patterson,  6  Har.  &  J.  (Md.)  182  ;  Niblett  v.  Scott,  4  La.  Ann. 
246L 


§  86  EFFECT  OF  FOREIGN  JUDGMENTS.  189 

ments  of  other  States  domestic  judgments  to  all  intents  and 
purposes,  but  merely  give  a  general  validity,  faith,  and  credit 
to  them  as  evidence.'  No  execution  is  to  issue  upon  such  for- 
eign judgment  without  a  new  suit  in  the  tribunals  of  the  State 
where  it  is  sought  to  be  enforced.  Nor  does  it  enjoy  any  pri- 
ority, privilege,  or  lien  which  may  be  accorded  it  in  the  State 
where  it  is  rendered,  but  only  such  as  the  lex  fori  gives  it  in  its 
character  of  a  foreign  judgment.'' 

Under  these  provisions,  the  judgment  is  to  be  given  the  same 
effect  in  other  States  as  in  the  State  where  it  is  rendered,  and 
since  it  is  in  general  conclusive  there  upon  the  rights  litigated, 
until  reversed,  it  will  also  be  held  to  be  conclusive  in  other 
States,  as  to  the  original  merits  of  the  controversy. 

It  is  immaterial  what  the  nature  of  the  controversy  is.  The 
judgment  is  equally  conclusive,  whether  it  be  in  rem  or  in  per- 
sonam; whether  it  fastens  a  personal  liability  upon  the  defend- 
ant, or  whether  it  only  affects  his  property  or  his  status.  Thus, 
the  valid  judgment  of  a  competent  court  determining  the  dom- 
icil  of  a  testator  and  probating  his  will  of  chattels  is  conclusive 
in  every  State  in  the  Union.^  So  also  the  judgment  of  the 
courts  of  the  domicil  declaring  a  child  to  have  been  lawfully 
adopted  is  in  general  conclusive.'  And  so  it  is  with  almost 
every  kind  of  judgment ;  such  as  judgments  for  money,  or  in 
divorce  or  attachment  proceedings,  etc.,  provided  only  the 
court  pronouncing  the  judgment  has  jurisdiction  of  the  cause, 
of  the  person,  and  of  the  res.  To  this  general  principle  there 
seems  to  be  only  one  exception.  It  does  not  apply  with  fuU 
force  to  foreign  judgments  tor  the  enforcement  of  a  penalty.^" 

It  follows  from  what  has  been  already  said  that  When  an 

«  Story,  Confl.  L.  §  609 ;  McElmoyle  v.  Cohen,  13  Pet.  312  ;  D'Arcy  v. 
Ketchuin,  11  How.  165. 

^  "Wood  V.  Watkinson,  17  Conn.  500  ;  McElmoyle  v.  Cohen,  13  Pet.  312  ; 
Stoty,  Confl,  L.  §  609. 

8  Thomas  v.  Morissett,  76  Ga.  384  ;  In  re  Gaines,  45  La.  Ann.  1237,  14 
So.  233. 

»  Van  Matre  v.  Sankey,  148  111.  356,  36  N.  E.  628.  See  Foster  v.  Water- 
man,  124  Mass.  592. 

10  Huntington  ».  Attrill,  146  U.  S.  657,  672.     See  ante,  §  10. 


190  DIVORCE,   PROCEEDING   QUASI  IN   REM.  §  8T 

actionals  brought  in  one  of  the  States  of  this  Union  to  enforce 
a  judgment  rendered  in  another,  only  such  defenses  can  be 
inhfle  thprf'to  in  jM^TtMlV^' !im  ivFTTTTrFin  mftrln  in  the  Statp^vyherp  it 

WH*^  p^'^^"""''''^j   i"  an  'K-tion  thftrp  on  aiiah— jrrrK^rrwnf:. 

Thus  in  an  action  in  one  State  of  the  Union  upon  a  judgment 
rendered  in  another,  the  defendant  may  show  that  the  court 
pronouncing  the  judgment  had  not  jurisdiction  of  the  cause,  of 
the  subject-matter,  or  of  the  parties;  ^^  or  that  the  judgment  is 
not  responsive  to  the  pleadings  —  at  least,  if  the  defendant  does 
not  appear  at  the  trial. ^*  So  the  defendant  may  show  matters 
ex  post  facto  that  go  in  release  or  discharge  of  the  judgment, 
according  to  the  law  of  the  place  where  the  judgment  is 
given.^' 

But  an  exception  to  this  principle  arises  where  the  defend- 
ant  pleads  the  statute  of  limitations  to  the  action  upon  the 
judgfljent.  The  scope  and  effect  of  this  defense  isTn^-general 
determined"  by  the  l&w  ot  the  State  where  the  action~XrpoH  the 
judgment  is  brought  (lex  fori)." 

§  87.  Divorce  Causes,  Proceedings  Quasi  in  Rem.  —  In 
divorce  causes,  the  actual  subject-matter  of  the  litigation  is 
the  marriage  status  itself.  The  design  is  to  affect  or  dissolve 
the  marital  relation,  not  to  impose  a  general  personal  liability 
upon  either  party,  or  to  give  personal  relief.  Hence  they  par- 
take of  the  nature  of  proceedings  in  rem  rather  than  of  pro- 
ceedings in  personam,  the  res  being  the  status.  And  this  is 
true  whether   the   suit   be   for  divorce    a   mensa  ^   or   divorce 

"  Harris  v.  Hardeman,  14  How.  334;  Cheever  v.  Wilson,  9  Wall.  108; 
Thompson  v.  Whitman,  18  Wall.  457;  Grover  &  B.  M.  Co.  v.  Radcliffe,  137 
U.  S.  287. 

"  Reynolds  v.  Stockton,  140  U.  S.  254. 

"  McElmoyle  v.  Cohen,  13  Pet.  312  ;  D'Arcy  ».  Ketchum,  11  How.  165. 

1*  Jacquetter.  Huguiron,  2  McLean,  129;  Bauserman  v.  Charlott,  46  Kan. 
480,  26  Pac.  1051  ;  Packer  w.  Thompson,  25  Neb.  688,  41  N.  W.  650.  See 
post,  §  210.  But  if  the  statute  of  the  State  where  the  judgment  is  rendered 
declares  that  the  judgment  shall  not  he  good  after  a  certain  period  of  years, 
that  law,  not  the  lex  fori,  must  govern.  Bowersox  v.  Gitt,  12  Penn.  Co. 
a.  81. 

1  See  De  Meli  r.  De  Meli,  120  N.  Y.  485 ;  Butler  v.  Washington,  45  1^. 
Ann.  279,  12  So.  356,  19  L.  R.  A.  814. 


§  88  THE   RES    IN   DIVORCE   CAUSES.  191 

a  vinculo.^  At  the  same  time  these  causes  cannot  be  said  to 
be  altogether  proceedings  in  rem.  There  is  a  personal  element 
that  enters  into  them,  not  found  in  suits  instituted  merely  to 
subject  or  affect  property.  Says  one  admirably  conceived  opin- 
ion :  *'  Accurately  speaking,  a  proceeding  in  rem  is  a  proceeding 
against  tangible  property,  and  actual  notice  is  dispensed  with 
on  the  theory  that  the  owner  is  bound  to  know  where  his  prop- 
erty is  and  whac  is  being  done  with  it.  It  is  manifest  this 
theory  cannot  be  applied  to  the  relation  of  husband  and 
wife."  » 

It  results  therefore  that  these  causes  constitute  in  some 
measure  a  dividing  line  between  proceedings  strictly  in  rem 
and  proceedings  strictly  in  personam,  partaking  in  part  of  the 
nature  of  each,  the  former  however  predominating.  Hence 
they  are  often  very  properly  denominated  proceedings  quasi  in 
rem.  The  importance  of  this  line  of  demarkation  will  appear 
hereafter  when  we  come  to  consider  the  exterritorial  effect  of 
divorce.* 

But  a  decree  for  the  costs  of  a  divorce  suit,  or  a  decree  for 
alimony,  is  a  decree  strictly  in  personam,  since  the  object  is  to 
fasten  upon  the  defendant  a  general  pecuniary  liability,  not  to 
affect  the  status.® 

§88.  The  Res  in  Divorce  Causes.  —  Divorce  causes  being 
proceedings  quasi  in  rem,  it  becomes  important  and  necessary 

«  Roth  V.  Roth,  104  111.  35,  44  Am.  Rep.  81,  84  ;  Anthony  v.  Rke,  110 
Mo.  233,  19  S.  W.  423,  424  ;  Dunham  v.  Dunham,  162  111.  589,  35  L.  R.  A. 
70,  77  ;  McGill  v.  Deming,  44  Ohio  St.  645,  11  N.  E.  118,  122.  The  New 
York  courts  are  peculiar  in  holding  the  view  that  divorce  causes  are  proceed- 
ings in  personam.  See  Williams  v.  Williams,  130  N.  Y.  193  ;  De  Meli  v.  De 
Meli,  120  N.  Y.  485;  Jones  v.  Jones,  108  N.  Y.  415;  O'Dea  v.  O'Dea,  101 
N.  Y.  23 ;  People  v.  Baker,  76  N.  Y.  78.  See  also  Prosser  v.  Warner,  47  Vt. 
667,  19  Am.  Rep.  132,  135-136. 

»  Doughty  r.  Doughty,  27  N.  J.  Eq.  315,  325. 

*  Post,  5§  89  et  seq. 

6  Felt  V.  Felt,  57  N.  J.  Eq.  101,  40  Atl.  436 ;  De  La  Montanya  v.  De  La 
Montanya,  112  Cal.  101,  32  L.  R.  A.  82,  85  ;  Thurston  v.  Thurston,  58  Minn. 
279,  59  N.  W.  1017,  1018  ;  Kline  v.  Kline,  57  la.  386,  10  N.  W.  825,  826  ; 
Prosser  v.  Warner,  47  Vt.  667,  19  Am.  Rep.  132,  133,  134.  But  see  Black- 
inton  V.  Blackinton,  141  Mass.  432.     See  post,  8  95- 


192  THE   RES   IN   DIVORCE  CAUSES.  §  86 

to  determine  what  is  the  res,  for  the  court's  jurisdiction  i*^  pro- 
ceedings in  rem,  depends  upon  its  jurisdiction  of  the  res. 

It  is  generally  admitted  that  the  res  is  the  marriage  status, 
which  includes  the  status  of  both  consorts,  the  situs  of  the 
status  of  each  being  his  or  her  domicil.  Strictly  speaking, 
therefore,  the  jurisdiction  of  the  status  of  the  husband  or 
wife  belongs  to  the  courts  of  his  or  her  domicil,  and  to  no 
other,  because  those  courts  alone  have  jurisdiction  of  the  res. 
But  in  the  case  of  marriage  the  status  is  a  double  or  correla- 
tive status.^  There  can  be  no  such  thing  as  a  husband  without 
a  wife,  or  a  wife  without  a  husband.  Hence  when  a  court  as- 
sumes to  pronounce  a  decree  destroying  the  marriage  status  of 
one  of  the  consorts,  it  must  necessarily  destroy,  so  far  as  its  de- 
cree has  any  effect  at  all,  the  status  of  the  other  consort  also. 
If  then  the  consorts  are  domiciled  in  different  States,  it  is  a 
matter  of  grave  importance  to  ascertain  how  far  the  power  of  the 
courts  of  either  of  these  domicils  extends  in  dissolving  the  mar- 
ital union. 

It  must  be  constantly  remembered  that  the  present  inquiry 
relates  to  the  extra-territorial,  not  the  intra-territorial,  effect  of 
a  decree  of  divorce.  It  is  admitted  that,  within  its  own  borders, 
each  State  has  sovereign  control  over  all  persons  and  property 
there  situated  either  permanently  or  temporarily,  subject  only 
to  such  restrictions  as  may  be  placed  upon  its  courts  by  its  own 
laws  or  constitution,  or  by  the  constitution  and  laws  of  the 
United  States.^  Subject  to  these  restrictions,  it  is  in  its  power 
to  declare,  in  any  form  of  proceeding  it  sees  fit,  that  a  married 
man  resident  there,  or  there  temporarily,  or  even  not  there  at 
all,  shall  be  there  deemed  no  longer  married,  and  that  whether 
the  wife  be  within  or  without  the  State.     This  is  purely  a 

^  So  it  is  also  with  the  status  of  adoption,  and  hence  the  principles  govern- 
ing the  exterritorial  effect  of  decrees  of  adoption  and  the  jurisdiction  of  courts 
to  grant  such  decrees  are  very  similar  to  those  regulating  decrees  of  divorce. 
See  Van  Matre  v.  Sankey,  148  111.  356,  36  N.  E.  628 ;  Foster  v.  Waterman, 
124  Mass.  592. 

^  The  provision  of  the  federal  constitution  that  no  State  shall  deprive  any 
person  of  life,  liberty,  or  property  without  due  process  of  law  does  not  apply 
to  the  marriage  relation. 


§  88  THE  RES   IN   DIVORCE   CAUSES.  193 

matter  of  muBicipal  law,  with  which  private  international  law 
has  no  concern.  And  the  status  being  a  reciprocal  one,  since, 
in  that  State,  the  husband  must  be  considered  to  be  without  a 
wife,  so  in  thai  State  the  woman  must  be  deemed  to  be  without 
a  husband. 

But  it  does  not  follow  that  either  will  be  regarded  as  unmar- 
ried in  other  States.  If  in  any  other  State  the  edict  is  given 
sufficient  effect  to  destroy  the  status  of  the  husband  as  a  mar- 
ried man,  it  must  also  be  held  in  that  State  that  the  woman  is 
unmarried.  If  in  another  State  the  woman's  status  is  regarded 
as  unaffected  by  the  edict,  so  must  the  man's.  In  other  words, 
a  decree  of  divorce  must,  in  any  State,  be  valid  as  to  both  con- 
sorts, or  void  as  to  both.  It  cannot  be  valid  as  to  one  and  void 
as  to  the  other,  for  that  would  be  to  affirm  that  there  might  be 
a  husband  without  a  wife,  or  vice  versa. 

Hence,  in  considering  the  exterritorial  effect  of  decrees  of 
divorce  the  question  is  whether  the  court  granting  the  divorce 
has  such  complete  jurisdiction  of  the  entire  res  (the  status  of 
both  parties),  as  to  justify  other  States  in  admitting  its  sover 
eign  right  to  completely  regulate  or  dissolve  the  marital  union. 

Beyond  all  doubt,  a  divorce  court  has  absolute  and  complete 
jurisdiction  of  the  res  if  both  parties  are  domiciled  within  its 
territory.  The  situs  of  the  status  of  each  party  is  then  the 
State  where  the  divorce  is  obtained,  and  there  is  no  ground  for 
any  other  State  to  complain  that  its  sovereign  rights  over  its 
own  citizens  have  been  violated.  Generally  full  effect  will  be 
given  to  foreign  divorces  under  such  circumstances.' 

On  the  other  hand,  if  neither  husband  nor  wife  is  domiciled 
in  the  State  where  the  divorce  is  obtained,  its  courts  are  com- 
pletely without  jurisdiction  of  the  res.  Other  States,  especially 
those  wherein  the  husband  and  wife  are  respectively  domiciled, 
might  and  would  justly  complain  that  the  State  of  the  divorce 
had  usurped  sovereignty  that  it  should  not  have  exercised. 
Though  admitting  the  validity  of  the  divorce  within  the  bor* 
ders  of  the  divorcing  State,  it  would  be  given  no  exterritorial 
effect  by  the  courts  of  other  States.* 

'  Post,  §  89.  *  Post,  §  90. 

13 


194  THE  RES   IN   DIVORCE  CAUSES.  §  88 

An  intermediate  case  (and  the  most  difficult)  presents  itself 
in  those  instances  where  one  of  the  parties  is  domiciled  in  the 
State  granting  the  divorce,  while  the  other  is  domiciled  else- 
where. Here  the  divorce  court  has  jurisdiction  of  part  of  the 
res  (the  status  of  its  citizen)  hut  has  no  jurisdiction  of  the 
other  part  of  the  res  (the  status  of  the  non-resident).  The 
whole  res  is  the  status  of  both  parties^  and  owing  to  the  reci- 
procity of  the  relation  it  cannot  be  severed,  so  as  to  give  the 
court  complete  jurisdiction  of  the  part  within  its  limits. 

Except  for  the  personal  element  involved  in  the  dissolution  of 
the  marriage  status  and  the  marital  rights  and  obligations,  the 
case  is  analogous  to  a  proceeding  strictly  in  rem  against  a  ship 
or  other  chattel  (which  we  may  suppose  to  be  indivisihle,  like 
the  status  of  the  two  parties  to  the  marital  union).  Let  us  sup- 
pose the  ship,  at  the  time  of  the  proceeding  in  rem,  to  be  partly 
in  one  State  and  partly  in  another.  The  court  would  have  juris- 
diction (theoretically)  of  so  much  of  the  ship  as  is  within  its 
territory,  but  would  have  none  over  that  part  within  the  territory 
of  another  State.  But  practically  (the  ship  being  supposed  to 
be  inseparable,  like  the  marriage  status)  the  question  would 
have  to  be  decided  whether  the  court,  by  virtue  of  its  jurisdic- 
tion over  part  of  the  ship,  might  draw  it  all  into  its  power,  or 
whether,  since  it  has  no  jurisdiction  (theoretically)  over  a  part, 
it  should  renounce  jurisdiction  over  so  much  as  is  within  its 
control.  It  must  do  one  or  the  other;  it  must  exercise  juris- 
diction over  the  whole  or  over  none. 

Such  for  the  most  part  is  the  situation  in  which  a  divorce 
court  finds  itself  in  cases  where  only  one  of  the  parties  is  domi- 
ciled in  the  State  of  the  divorce.  It  is  not  difficult  to  imagine 
that  in  general  the  court  would  resolve  the  problem  in  favor  of 
its  own  jurisdiction,  holding  that  by  virtue  of  its  jurisdiction 
over  a  part  it  might  draw  the  whole  res  into  its  control.  So 
the  court  would  probably  argue  in  the  case  of  the  ship,  and 
accordingly  would  assume  control  of  it  in  its  entirety.  But  a 
more  serious  question  would  then  arise.  What  effect  would  be 
given  to  this  action  of  the  court  in  respect  to  the  ship  in  the 
other  State  from  which  the  ship  has  in  part  been  drawn  away? 
Would  that  State  regard  its  withdrawal  from  its  own  territory 


§  89  DIVORCE  IN   DOMICIL   OF   BOTH   PARTIES.  195 

as  a  proper  and  lawful  exercise  of  power,  or  would  it  deem  the 
action  of  the  court  impertinent,  in  contravention  of  its  own 
sovereignty,  and  therefore  void  within  its  limits  ?  • 

Precisely  these  questions  have  agitated  the  courts  with  respect 
to  the  effect  to  be  given  foreign  divorces,  where  one  of  the  par- 
ties (usually  the  defendant)  is  a  non-resident  of  the  State  of 
divorce.     How  they  have  been  solved  will  be  seen  hereafter.' 

§  89.  Exterritorial  Ilffect  of  Divorce — Both  Peu-ties  Domi- 
ciled in  State  of  Divorce.  —  "VKIjere  both  consorts  are  domiciled 
in  the  State  where  the  divorgA  is  obtained,  the  court  has  com- 
plete juri§dicti^«--©f--ihajz:fiV-ajidJim:e:S^i_i^^  of 
judgments  in  rem,  the  decree  will  be  binding  everywhere,  if 
binding  in  the  State  of  the  domicil  and  divorce.-^ 

From  the  standpoint  of  private  international  law  it  is  imma-. 
terial  whether  or  not  the  parties  be  actually  present  within  the 
jurisdiction  at  the  time  of  the  divorce,  if  only  they  are  there 
domiciled;  ^  nor  is  it  material  how  long  the  residence  has  con- 
tinued, even  though  it  be  not  long  enough,  under  the  municipal 
law  of  the  domicil,  to  give  jurisdiction  to  its  courts.' 

Generally  speaking,  it  is  the  laws  and  courts  of  the  bona 
fide  present  domicil  of  the  parties  that  regulate  the  divorce, 
not  those  of  the  country  of  residence  (merely),  nor  of  citizen- 

5  See  Plumraer  v.  Hatton,  51  Minn.  181,  53  N.  W,  460.  Bat  in  this  case 
the  res  was  severable,  consisting  of  a  wagon  in  one  State,  while  the  tongue 
was  in  another.  See  also  Thurston  v.  Thurston,  68  Minn.  279,  59  N.  W. 
1017. 

«  Post,  §§  89-94. 

1  Clark  V.  Clark,  8  Cush.  (Mass.)  385  ;  Barber  v.  Root,  10  Mass.  260  ; 
Hood  r.  Hood,  11  Allen  (Mass.),  196,  200,  87  Am.  Dec.  709  ;  Shaw  v.  Shaw, 
98  Mass.  158  ;  Burlen  v.  Shannon,  115  Mass.  438 ;  Loker  v.  Gerald,  157 
Mass.  42,  31  N.  E.  709  ;  Harrison  v.  Harrison,  20  Ala.  629, 56  Am.  Dec.  227 ; 
Maguire  v.  Maguire,  7  Dana  (Ky.),  181,  185  ;  McGill  ».  Deming,  44  Ohio  St. 
645,  11  N.  E.  118, 122  ;  Hunt  v.  Hunt,  72  N.  Y.  217,  228,  28  Am.  Rep.  129  ; 
Cheely  v.  Clayton,  110  U.  S.  701. 

*  Hunt  V.  Hunt,  72  N.  Y.  217,  237,  28  Am.  Rep.  129  ;  Loker  r.  Gerald, 
157  Mass.  42,  31  N.  E.  709. 

»  Magowan  v.  Magowan,  57  N.  J.  Eq.  195,  39  Atl.  364 ;  Hill  v.  Hill,  166 
111.  54,  46  N.  E.  751,  752 ;  Thurston  v.  Thurston,  58  Minn.  279,  59  N.  W. 
1017.  This  is  not  a  jurisdictional  defect,  but  an  error  of  law  to  be  corrected 
OB  appeal. 


196  FOREIGN  DIVORCE   IN   DOMICIL  OF   BOTH.         §  89 

ship,*  nor  of  the  domicil  at  the  time  of  the  marriage  or  of 
the  offense,  nor  of  the  place  of  marriage,  nor  of  the  situs  of  the 
offense  hecause  of  which  the  divorce  is  sought.^ 

As  between  the  States  of  this  Union,  the  "full  faith  and 
credit "  clause  of  the  federal  constitution  holds  full  sway  in 
divorce  cases,  as  in  other  judgments  or  decrees.  Such  decrees, 
when  rendered  by  a  court  possessing  competent  jurisdiction  of 
the  subject-matter  and  of  the  persons,  unless  void  where  ren- 
dered, are  conclusive  in  every  other  State  of  the  matters  they 
decide.  It  is  well  settled  that  this  provision  does  not  prevent 
an  inquiry  into  the  competency  of  the  divorce  court's  jurisdiction 
by  reason  of  the  non-residence  of  the  parties,  or  by  reason  of 
fraud  in  the  procurement  of  the  divorce,®  at  least  where  the 
fraud  relates  io  jurisdictional  facts.'' 

There  is  some  difference  of  opinion  among  the  authorities  as 
to  the  effect  to  be  given  to  the  recital  in  the  decree  of  divorce 
that  the  parties  are  domiciled  within  its  territory,  when  in  fact 
they  are  not.^     Some  of  the  courts  have  held  that  such  a  recital 

*  Save  as  between  the  States  of  the  Union,  where  domicil  and  citizenship 
are  synonymous  terms. 

6  Dicey,  Confl.  L.  269  ;  Cheever  v.  Wilson,  9  Wall.  108,  124  ;  Cheely  v. 
Clayton,  110  U.  S.701,  705  ;  Vischer  v.  Vischer,  12  Barb.  (N.  Y.)  640,  647  ; 
Ellis  V.  Ellis,  55  Minn.  401,  56  N.  W.  1056,  1058 ;  Van  Fossen  v.  State,  37 
Ohio  St.  317,  41  Am.  Rep.  507,  508  ;  Cox  v.  Cox,  19  Ohio  St.  502,  2  Am. 
Rep.  415  ;  Jones  v.  Jones,  67  Miss.  195,  6  So.  712 ;  Shreck  v.  Shreck,  32 
Tex,  578,  5  Am.  Rep.  251,  252.  But  see  Norris  v.  Norris,  64  N.  H.  523, 
15  Atl.  19. 

«  Cheever  ».  Wilson,  9  Wall.  108,  123  ;  Pennoyer  v.  Neff,  95  U.  S.  714, 
734 ;  Cummington  v.  Belchertown,  149  Mass.  223,  225  ;  Gregory  v.  Gregory, 
78  Me.  187,  57  Am.  Rep.  792,  793 ;  Reed  v.  Reed,  52  Mich.  117,  50  Am. 
Rep.  247 ;  Watkins  v.  Watkins,  125  Ind.  163,  25  N.  E.  175  ;  Morgan  r. 
Morgan,  1  Tex.  Civ.  App.  315,  21  S.  W.  154. 

7  Hood  V.  Hood,  11  Allen  (Mass.),  196,  200,  87  Am.  Dec.  709  ;  Hunt  v. 
Hunt,  72  N.  Y.  217,  28  Am.  Rep.  129  ;  Vischer  v.  Vischer,  12  Barb.  (N.  Y.) 
640,  644;  Harding  v.  Alden,  9  Greenl.  (Me.)  140,  23  Am.  Dec.  549,  555  ; 
Magowan  ».  Magowan,  57  N.  J.  Eq.  195,  39  Atl.  364;  People  v.  Dawell,  25 
Mich.  247,  12  Am.  Rep.  260 ;  Thurston  v.  Thurston,  58  Minn.  279,  59  N.  W. 
1017,  1018.  In  the  last  case,  the  plaintiff  deceived  the  divorce  court  touch- 
ing the  period  of  his  residence  there.  It  was  held  that  this  was  not  jurisdio- 
tional  and  would  not  avoid  the  decree  exterritorially. 

•  Cheever  r.  Wilson,  9  Wall.  108, 123  ;  Magowan  v.  Magowan,  57  N.  J.  Eq. 
195,  39  Atl.  364. 


§  90        FOREIGN  DIVORCE  —  NEITHER   DOMICILBD.  197 

in  the  decree  constitutes  a  finding  of  fact,  and  is  as  binding, 
until  reversed  in  the  same  jurisdiction,  as  any  other  finding  of 
fact.'  But  the  correct  view,  both  upon  reason  and  authority, 
is  that  such  a  recital  is  not  conclusive,  but  only  prima  facie 
evidence  of  the  truth  of  the  recital,  susceptible  of  rebuttal  in 
other  States  by  parol  testimony  to  the  contrary.^" 

§  90.  Neither  Party  Domiciled  in  State  of  Divorce.  —  We 
have  already  seen  that  the  matrimonial  union  is  a  status  of 
such  peculiar  importance  to  the  State  that  it  cannot  be  dissolved 
merely  by  the  mutual  consent  of  the  parties,  but  the  assent  of 
the  State  interested  (the  domicil)  must  generally  be  obtained 
in  order  effectually  to  dissolve  the  relation.  Though  it  is 
within  the  sovereign  capacity  of  a  State  to  enact  laws  whereby 
parties  may  obtain  a  divorce  even  when  neither  husband  nor 
wife  is  there  domiciled,  such  a  course  is  condemned  by  the 
principles  of  comity  and  private  international  law. 

If  a  divorce  is  thus  given  in  a  State  where  neither  party  is 
domiciled,  whether  it  be  that  the  divorcing  court  has  been  de- 
ceived as  to  the  domicil  of  the  parties,  or  whether  its  own  mu- 
nicipal law  permits  it  to  divorce  non-residents,  it  is  generally 
conceded  that  the  decree  is  of  no  force  in  other  States  or  coun- 
tries, least  of  all  in  the  State  of  the  parties'  domicil,  whose 
sovereignty  over  the  permanent  status  of  its  citizens  has  been 

9  Magowan  v.  Magowan,  57  N.  J.  Eq.  195,  39  Atl.  364  ;  Fairchild  v.  Fair- 
child,  53  N.  J.  Eq.  678,  34  Atl.  10  ;  Waldo  v.  Waldo,  52  Mich.  94,  17  N.  W. 
710.     See  Morey  v.  Moray,  27  Minn.  265,  6  N.  W.  783. 

10  Sewall  V.  Sewall,  122  Mass.  156  ;  Cummington  v.  Belchertown,  149  Mass. 
223,  225;  Adams  v.  Adams,  154  Mass.  290,  294;  HUl  v.  Hill,  166  111.  54, 
46  N.  E.  751,  752;  Smith  v.  Smith,  43  La.  Ann.  1140,  10  So.  248,  250; 
People  V.  Dawell,  25  Mich.  247,  12  Am.  Rep.  260 ;  Reed  v.  Reed,  52  Mich. 
117,  50  Am.  Rep.  247,  250;  James'  Estate,  99  Cal.  374,  33  Pac.  1122,  1123; 
Magowan  v.  Magowan,  57  N.  J.  Eq.  195,  39  Atl.  364;  Starbuck  v.  Murray, 
5  Wend.  (N.  Y.)  148  ;  HoflFman  v.  HoflFman,  46  N.  Y.  30,  7  Am.  Rep.  299; 
Ferguson  v.  Crawford,  70  N.  Y.  253 ;  Cross  v.  Cross,  108  N.  Y.  628  ;  Gregory 
V.  Gregory,  78  Me.  187,  57  Am.  Rep.  792,  793  ;  Thompson  v.  Whitman,  18 
Wall.  457  ;  Pennoyer  v.  NefiF,  95  U.  S.  714,  730.  If  the  divorcing  court  has 
tried  the  question  of  residence  upon  conflicting  testimony  and  has  decided  in 
favor  of  the  jurisdiction,  great  caution  should  be  exercised  elsewhere  in  over- 
throwing the  jurisdiction  it  has  assumed.  See  Waldo  v,  Waldo,  52  Mich.  94| 
17  N.  W.  710. 


19»  FOREIGN  DIVORCE  —  NEITHER   DOMICILED.        §  90 

outraged.^     In   such  cases^thp  rliv^^rff^  rrurt  has  no  iurisdiction 

of  the  res.  that^S^^the  gfQ>ngjvf_t^TiP  parf^pq  (^h^  aifna  nf  whi^Ti  ia  at 

their  domicil).  andjience  even  tjirm^  hnth  ptirtinn  nuhmijjjjrir 
cause  to  the  divorce  court,  it  is  without  pow^r  to  nffp.r.t  thft  rpx^ 
save  within  the  limits  of  its  own  territorj.  Tho  conspnt  of  tha 
parties  canaSHgtr*^  jurisdiuLiCTn^over  their  foreign  status,  for 
that  would  he  to  infringe  upon  the  sovereignty  of  the  domicil 
which  is  interested  in  the  continuation  of  the  relation.' 

These  general  principles  of  private  international  law  are  now 
so  clearly  recognized  that  the  municipal  laws  of  the  various 
States  almost  invariahly  require  that,  in  order  to  the  granting 
of  a  divorce,  at  least  one  of  the  parties  (generally  the  plaintiff) 
should  be  bona  fide  domiciled  within  the  jurisdiction.'     A  tem- 

1  Barber  v.  Root,  10  Mass.  260 ;  Hanover  v.  Turner,  14  Mass.  227,  7  Am. 
Dec.  203  ;  Shannon  v.  Shannon,  4  Allen  (Mass.),  134;  Sewall  v.  Sewall,  122 
Mass.  156;  Maguire  v.  Maguire,  7  Dana  (Ky.),  181;  Harrison  v.  Harrison, 
20  Ala.  629,  56  Am.  Dec.  227;  Jackson  v.  Jackson,  1  Johns.  (N.  Y.)  424  ; 
Kerr  v.  Kerr,  41  N.  Y.  272 ;  Neflf  v.  Beauchamp,  74  la.  92,  36  N.  W.  905  ; 
Hood  V.  State,  56  Ind.  263,  26  Am.  Rep,  21 ;  Watkins  v.  Watkins,  125  Ind. 
163,  25  N.  E.  175  ;  Smith  v.  Smith,  19  Neb.  706,  28  N.  W.  296 ;  Van  Fos- 
sen  V.  State,  37  Ohio  St.  317,  41  Am.  Rep.  507  ;  People  v.  Dawell,  25  Mich. 
247,  12  Am.  Rep.  260,  266  ;  Reed  v.  Reed,  52  Mich.  117,  50  Am.  Rep.  247  ; 
Morgan  v.  Morgan,  1  Tex.  Civ.  App.  315,  21  S.  W.  154  ;  Gregory  v.  Gregory, 
78  Me.  187,  57  Am.  Rep.  792  ;  Gettys  v.  Gettys,  3  Lea  (Tenn.),  360,  31  Am. 
Rep.  637  ;  Litowich  v.  Litowich,  19  Kan.  451,  27  Am.  Rep.  145. 

2  Jackson  v.  Jackson,  1  Johns.  (N.  Y.)  424;  Pawling  r.  Bird,  13  Johns. 
(N.  Y.)  192  ;  Maguire  v.  Maguire,  7  Dana  (Ky.),  181  ;  Harrison  v.  Harrison, 
20  Ala.  629,  56  Am.  Dec.  227;  Smith  v.  Smith,  13  Gray  (Mass.),  209,  210; 
People  r.  Dawell,  25  Mich.  247,  12  Am.  Rep.  260,  268,  272-273.  See  Loud 
V.  Loud,  129  Mass.  14,  18  ;  Chase  v.  Chase,  6  Gray  (Mass.),  157,  161.  Some 
of  the  courts  however  hold  the  view  that,  although  the  court  does  not  acquire 
jurisdiction  over  the  res,  the  voluntary  submission  by  the  parties  to  its  de- 
cision estops  them  (but  not  third  parties  nor  the  State  of  their  domicil)  from 
afterwards  denying  the  court's  jurisdiction  elsewhere.  See  Ellis  v.  Ellis,  55 
Minn.  401,  56  N.  W.  1056,  1059 ;  Watkins  v.  Watkins,  135  Mass.  83,  86  ; 
Loud  V.  Loud,  129  Mass.  14,  19  ;  Hood  v.  Hood,  110  Mass.  463  ;  Ellis  i>. 
White,  61  la.  644,  17  N.  W.  28  ;  Chapman  v.  Chapman,  48  Kan.  636,  29  Pac. 
1071.  And  in  New  York,  where  the  theory  prevails  that  a  divorce  suit  is  a 
proceeding  in  personam,  not  in  rem,  the  fact  that  both  parties  submit  them- 
selves to  the  jurisdiction  of  an  alien  court,  is  regarded  as  sufficient  to  render 
its  decree  binding  in  New  York.     See  Kinnier  v.  Kinnier,  45  N.  Y.  535. 

*  Williamson  v.  Parisien,  1  Johns.  Ch.  (N.  Y.)  389  ;  Hoffman  v.  Hoffman, 


§90 


FOREIGN  DIVORCE  —  NEITHER   DOMICILED. 


199 


porary  residence  acquired  for  the  mere  purpose  of  instituting 
the  suit,  the  intfint  being  to  remove  fromllie  Stale  M  aoon  as 
the  suit  is  terminated,  will  not  generally  snffirp  "r^/jpr  f^e  riilea 
of  municipal  law,  and  is  never  sufficient  from  the  international 
standpoTnt.*  i3ut  it  the  animus  really  exists  to  remain  there 
permanently,  the  fact  that  the  motive  of  removal  iStoprocure  a 
divorce  is  immaterial.  " 

For  the  purposes  of  municipal  law,  in  the  absence  of  statute, 
and  always  for  the  purposes  of  private  international  law,  the 
period  during  which  the  party  is  domiciled  is  immaterial.  He 
acquires  a  domicil  at  the  moment  when  actual  residence  is 
coupled  with  the  animus  manendi,  and  from  that  moment  his 
status  should  be  determined  by  the  law  of  that  country .* 

It  will  be  remembered  that  in  general  the  wife's  domicil  fol- 
lows that  of  the  husband,  but  that  for  purposes  of  divorce  an 
innocent  wife  may  acquire  a  domicil  apart  from  her  husband,  if 
she  desires  to  do  so  and  conforms  to  the  conditions.''  But  she 
is  not  bound  to  do  so.  She  is  still  at  liberty  to  treat  her  hus- 
band's domicil  as  her  own,  though  she  actually  resides  else- 
where, and  may  sue  for  divorce  in  the  State  of  his  domicil, 
though  she  has  never  actually  resided  there.     Thus,  where  the 

46  N.  Y.  30  ;  St.  Sure  v.  Lindsfelt,  82  Wis.  346,  19  L.  R.  A.  515 ;  McShane 
V.  McShane,  45  N.  J.  Eq.  341,  19  Atl.  465 ;  Valk  v.  Valk,  18  R.  I.  639,  29 
Atl.  499  ;  Neflf  v.  Beauchamp,  74  la.  92,  36  N.  W.  905. 

*  Warrender  v.  Warreuder,  9  Bligh,  141,  142  ;  Dolphin  v.  Robins,  7  H.  L. 
Cas.  390;  Dorsey  v.  Dorsey,  7  Watts  (Penn.),  349,  32  Am.  Dec.  767;  Gettys 
V.  Gettys,  3  Lea  (Tenn.),  360,  31  Am.  Rep.  637,  638  ;  Neff  v.  Beauchamp,  74 
la.  92,  36  N.  W.  905  ;  Knowlton  v.  Knowlton,  155  111.  158,  39  N.  E.  595 ; 
Dunham  v.  Dunham,  162  111.  589,  35  L.  R.  A.  70  ;  Magowan  v.  Magowan, 
57  N.  J.  Eq.  195,  39  Atl.  364. 

5  Fosdick  V.  Fosdick,  15  R.  I.  130,  23  Atl.  140 ;  Albee  v.  Albee,  141  111. 
550,  31  N.  E.  153  ;  Colburn  v.  Colbum,  70  Mich.  647,  38  N.  W.  607  ;  Hege- 
man  v.  Fox,  31  Barb.  (N.  Y.)  475,  479. 

6  Hill  V.  Hill,  166  111.  54,  46  N.  E.  751  ;  Magowan  v.  Magowan,  57  N.  J. 
Eq.  195,  39  Atl.  364 ;  Kern  v.  Field,  68  Minn.  317,  71  N.  W.  393,  394  ; 
Thurston  v.  Thurston,  58  Minn.  279,  59  N.  W.  1017;  Watkins  v.  Watkius, 
135  Mass.  83,  84.  But  the  municipal  laws  of  most  States  require  a  person  to 
have  been  domiciled  there  for  a  more  or  less  extended  period  before  he  or  she 
can  institute  a  suit  for  divorce. 

f  Ante,  §§  50,  51. 


200        FOREIGN   DIVORCE  —  ONE  A   NON-RESIDENT.       §  91 

husband  deserts  the  wife  and  goes  to  another  State  to  live, 
whither  she  follows  him,  it  would  seem  upon  principle  that  she 
need  not  remain  there  the  statutory  time  in  order  to  acquire 
such  residence  as  will  enable  her  to  sue  for  divorce.* 

§  91.  Only  one  of  the  Parties  domiciled  in  State  of  Divorce. 
—  We  have  seen  in  thB.-f»fgt;g(lin^  sep:ttott9~that^  if  both  the  par- 
ties are  domiciled  in  the  State  ^f  ^^q  ^^-^nr^gjjthe  decree,  if 
valid-^tEere,  wijlbe  binding  evervwherftT  whatever  the  character 


of  the  proceedings  may  be,  and  upon  whnt^Yftr  n^tif  M^-ff  the  de- 
fendant.  On  the  other  hand,  if  neither  party  is  domiciled  in 
the  State  of  the  divorce,  the  court  is  without  jurisdiction  of  the 
res,  and  in  the  absence  of  a  reg,  according  t^  thr  hpftfr  npinionj 
flip  nmiri^  |>a.nTiAf  proceed  in  personrim>  by  a  dnrrpp  whinh  will  be 
recognized  extcrritorially;  though  la  fad  the  proceedings  be 
ever  ao-juat  q.n(^  fair,  and  though  both  tbp.  parHfts  are  personally 
before  the  court.  Although  the  divorce  proceeding~pz>gtake8  in 
somgjTneaaure  oi_arproceecting  in  personam,  the  personftlgtement 
it  is  believed  is  not  sufiScient  to  supersede  the  necessity  for  some 
res  upon  which  the  decree  may  operate.  On  the  other  hand,  if 
the  complete  res  is  before  the  court  (as  where  both  parties  are 
domiciled  in  the  divorcing  State),  the  personal  element  sinks  out 
of  sight  altogether,  and  the  proceeding  becomes  strictly  in  rem,. 
We  now  come  to  consider  the  intermediate  case  where  one 
of  the  parties,  and  only  one,  is  domiciled  in  the  State  of  the 
divorce.  This  case  has  caused  the  courts  very  great  difficulty, 
owing  to  the  fact  that  the  divorcing  court  has  partial,  but  not 
complete,  jurisdiction  of  the  res.  It  has  control  over  the  status 
of  its  own  domiciled  citizen,  but  not  over  the  status  of  the 
citizen  of  another  State.  Yet,  owing  to  the  mutuality  of  the 
relation  between  husband  and  wife,  it  can  make  no  decree 
affecting  the  status  of  one,  without  simultaneously  and  equally 
affecting  the  status  of  the  other.  Under  such  circumstances, 
one  of  two  courses  is  open  to  the  court.  It  may  either  draw  to 
itself  (usurp,  as  it  were)  jurisdiction  over  the  status  of  the  non- 
resident,  by  virtue  of   its  jurisdiction  over  the  status  of  the 

8  Kershaw  v.  Kershaw,  3  Cal.  312;  Watkinsw.  Watkins,  135  Mass.  83,  87. 
But  see  Valk  v.  Valk,  18  R.  I.  639,  29  Atl.  499 ;  Wood  v.  Wood,  54  Ark. 
172,  15  S.  W.  459. 


§  91       FOREIGN  DIVORCE  —  ONE  A   NON-RESIDENT.        201 

resident,  or  it  may  renounce  jurisdiction  over  the  status  of 
the  resident  because  it  has  not  jurisdiction  of  the  status  of  the 
non-resident. 

The  municipal  law  of  each  State,  being  primarily  interestfid 
in  and  devoted  to  its  own  citizens,  will  usually  enjoin  upon  its 
courts  the  first  of  these  courses,  as  being  most  conducive  to 
their  protection.  Accordingly  we  find  provision  in  the  munici- 
pal laws  of  every  State  directing  how  divorces  may  be  obtained 
by  citizens  against  non-resident  defendants.  In  such  cases,  the 
laws  of  many  Statfia^  looking  tipoli  the  divoi^  puxelji -in  its 
aspect  hi  a  proceeding^»_rfi22V-P*"iiii''  tlmir  ■eetitta.io^grant  the 
divorce  upon  no  further  noticetothe  non-rftaidftnt  f}pifftTif}ftnfj_tjia.n 
is  afforded  by  an  order  oi  pjihli ration;  ^  Trhilo  otibdiu  (ujilijhi  liiig 
sight  altogether  of  the  personal  element  in  the  divorce  proceed- 
ing) resort  to  the  juster  method  of  requiring  actual  notice  of~the 
pendency  of  the  suit  to  be  mailed  or  otherwlstj  biafel)!  ti'aiis- 
mitted  ^fiJ}}?,  ahgpTtf.  f^pf^TwliiTit  a — The  uatuic  of  thio  notice  is 
regulated  by  the  municipal  law  of  each  State,  and  if  that  law 
is  complied  with  the  divorce  is  valid  within  the  limits  of  that 
State?' 

But  when  it  is  sought  to  give  effect  in  other  States  to  the 
divorce  so  obtained,  it  becomes  a  more  difficult  question  to  de- 
termine the  consequence  of  the  merely  partial  jurisdiction  pos- 
sessed by  the  divorce  court  over  the  res. 

It  would  manifestly  be  impolitic,  as  well  as  unjust,  to  lay 

1  Ditson  V.  Ditson,  4  R.  I.  87;  Kline  v.  Kline,  57  la.  386,  10  N.  W.  825  ; 
Cox  V.  Cox,  19  Ohio  St.  502,  2  Am.  Rep-  415  ;  Anthony  v.  Rice,  110  Mo.  233, 
19  S.  W.  423  ;  Butler  v.  Washington,  45  La.  Ann.  279,  12  So.  356. 

2  Harding  v.  Alden,  9  Greenl.  (Me.)  140,  23  Am.  Dec.  549  ;  Loker  v. 
Gerald,  157  Mass.  42 ;  Smith  v.  Smith,  43  La.  Ann.  1140,  10  So.  248;  Cham- 
pon  V.  Champon,  40  La.  Ann.  28,  3  So.  397.  In  a  proceeding  in  rem,  in 
which  the  personal  element  does  not  enter,  as  in  a  proceeding  against  prop- 
erty, the  two  forms  of  notice  above  given  are  regarded  as  equivalent.  See 
Pennoyer  v.  NefF,  95  U.  S.  714,  727.  But  in  a  proceeding  quasiin  rem,  where 
the  personal  element  enters  to  a  certain  extent,  it  cannot  be  properly  said  that 
an  advertisement  is  equivalent  to  actual  notice.  See  Doughty  v.  Doughty, 
27  N.  J.  Eq.  315,  325. 

8  Harding  v.  Alden,  9  Greenl.  (Me. )  140,  23  Am.  Dec.  549 ;  Smith  n 
Smith,  43  La.  Ann.  1140,   10  So.  248. 


202        FOREIGN   DIVORCE  —  ONE   A   NON-RESIDENT.       §  91 

down  the  general  principle  that  a  plaintiff  shall  never  obtain  a 
universally  valid  divorce  in  his  own  country,  because  the  de- 
fendant happens  to  be  a  non-resident.  To  so  hold  would  force 
the  plaintiff  to  seek  out  the  defendant  and  to  ask  for  the  divorce 
in  a  State  chosen  by  the  latter,  perhaps  for  the  very  reason  that 
its  laws  are  hostile  to  the  plaintiff's  cause. 

On  the  other  hand,  it  must  be  remembered  that  a  suit  for  a 
divorce  is  not  a  proceeding  strictly  in  rem,  but  merely  quasi  in 
rem  ;  and  that  while  the  res  in  the  former  proceeding  is  property 
whose  situation  and  condition  the  owner,  though  non-resident, 
must  be  assumed  to  be  familiar  with,  in  proceedings  qxi^asi  in 
rem,  the  res  is  a  personal  status,  an  attack  upon  which  in  a  dis- 
tant State  cannot  be  justly  assumed  to  be  known  by  the  defend- 
ant without  an  actual  notification  of  some  sort. 

Many  theories  have  from  time  to  time  been  advanced  by  the 
courts,  some  of  which  have  been  incidentally  adverted  to  in 
prior  sections  of  this  work,^  and  all  of  which  have  now  been 
pretty  generally  discarded,  except  three  leading  ones.  The  first 
of  these  is  entirely  favorable  to  the  resident  •plaintiff,  sacrificing 
to  the  sovereignty  of  his  domiciliary  law  all  the  rights  of  the 
defendant.  The  second  is  entirely  favorable  to  the  non-resident 
defendant,  sacrificing  the  rights  of  the  plaintiff  to  the  sover- 
eignty of  the  defendant's  domiciliary  law.  It  forces  the  plain- 
tiff for  the  most  part  to  sue  for  his  divorce  in  the  courts  of  the 
defendant's  domicil,  and  requires  him  to  subject  himself  to  its 
laws.  This  theory  is  supported  by  the  courts  of  New  York,  and 
may  be  designated  "the  New  York  doctrine."  The  third  strikes 
a  happy  mean  between  the  first  and  second,  and  while  giving  to 
the  plaintiff  all  the  rights  conferred  by  his  own  law,  permitting 
him  to  sue  in  the  courts  of  his  domicil,  yet  requires  that  the 
defendant  should  receive  a  more  substantial  notification  of  the 
existence  of  the  suit  than  is  afforded  merely  by  a  published 
advertisement  in  a  newspaper  of  the  plaintiff's  domicil.  This 
may  be  designated  "  the  New  Jersey  doctrine,"  and  is  believed 
to  be  the  soundest.  The  theories  thus  briefly  outlined  will  now 
be  elaborated  more  fully. 

*  Ante,  §§  76,  note  1,  78,  notes  2,  3. 


§  92       FOREIGN   DIVORCE  —  ONE   A  NON-RESIDENT.         203 

§  92.  First  Theory  —  Jurisdiction  over  one  Party  confers 
Jurisdiction  over  the  other  also.  —  According  to  the  first  theory, 
in  order  that  the  divorce  court  may  have  complete  jurisdiction 
of  the  res,  so  that  its  decree  will  receive  recognition  everywhere 
as  dissolving  the  relation  of  husband  and  wife,  it  is  only  essen- 
tial that  one  of  the  parties  should  be  domiciled  there  —  it  is 
immaterial  which,  though  it  will  usually  be  the  plaintiff.  The 
courts  of  that  party's  domicil,  having  jurisdiction  over  his  or 
her  status,  will  draw  to  themselves,  by  reason  of  the  mutuality 
of  the  marriage  relation,  jurisdiction  of  the  status  of  the  other 
party  also,  thus  acquiring  jurisdiction  of  the  status  of  both. 
The  case  (under  this  theory)  is  practically  identical  with  that 
where  both  parties  are  domiciled  within  the  limits  of  the  State 
of  the  divorce,  and  the  proceeding,  as  in  that  case,  is  regarded 
as  one  strictly  in  rem,  the  personal  element  of  the  proceeding 
being  disregarded  altogether.  H^iice  (under  this  theory)  only 
such  notice  is  reqni]-pd  tp  hp  givftu  thf*  n^n-rpsidf'nt  df^ff'ndanti 
as  is  required  by  tb^  pinmVipcil  l^w  nf  fhp  Sf^,tp  ^^f  divorce  in 
order  to  give  its  courts  jurisdiction  —  frequently  nothing  more 
thaiiTan  adverjifiPTrP"^  pnblinhf^d  in  n^mf^  i^lrnfurn  ncw^ipfiiprr  ^^ 
that_State.^ 

It  will  be  observed  that  this  doctrine  upholds  in  full  measure 
the  sovereignty  of  the  plaintiff's  domicil  with  respect  to  his 
status,  but  in  so  doing  it  oftentimes  permits  grave  (and  very 
unnecessary)  injustice  to  be  done  to  the  defendant,  who  fre- 

1  Ditson  V.  Ditson,  4  R.  I.  87;  Kline  v.  Kline,  57  la.  386,  10  N.  W.  825, 
826  ;  Thurston  v.  Thurston,  58  Minn.  279,  59  N.  W.  1017,  1018  ;  Morey  v. 
Morey,  27  Minn.  265,  6  N.  W.  783 ;  Thompson  v.  Thompson,  91  Ala.  591, 

8  So.  419;  Cox  v.  Cox,  19  Ohio  St.  502,  2  Am.  Rep.  415,  416;  Doerr  v. 
Forsythe,  50  Ohio  St.  726,  35  N.  E.  1055 ;  Anthony  v.  Rice,  110  Mo.  233, 
19  S.  W.  423,  424  ;  Hawkins  v.  Ragsdale,  80  Ky.  353,  44  Am.  Rep.  483  ;  Dun- 
ham V.  Dunham,  162  111.  589,  35  L.  R.  A.  70,  77,  78  ;  Hilbish  t;.  Hattel,  145 
Ind.  59,  33  L.  R.  A.  783  ;  Rodgers  v.  Rodgers,  56  Kan.  483,  43  Pac.  779.  In 
other  cases  often  cited  to  support  this  theory,  it  appears  that  there  was  an 
actual  notification  of  the  suit  transmitted  to  the  non-resident  defendant.  Such 
cases  are  in  reality  instances  of  the  third  theory,  presently  to  be  discussed. 
See  Van  Orsdal  v.  Van  Orsdal,  67  la.  35,  24  N.  W.  579 ;   Harding  v.  Alden, 

9  Greenl.  (Me.)  140,  23  Am.   Dec.  549;   Smith  v.  Smith,  43  La.  Ann.  1140, 

10  So.  248 ;   Loker  v.  Gerald,  157  Mass.  42,  31  N.  E.  709. 


204        FOREIGN  DIVORCE  —  ONE   A  NON-RESIDENT.       §  93 

quently  finds  himself  or  herself  divorced,  without  any  previous 
knowledge  whatever  that  proceedings  for  that  purpose  were 
pending.  The  l^ws  and  procedure  of  J;hf-  plaintifF^a  rlnminil 
are  devised  to  pr^tprtt  thpi  jtlninft'ff^  \  iiili  ii  il  ij  mil  thnm  of 
the>.^alien  defendant.  This  constitutes  the  weakngsgnf  this 
theory.  Its  tendency  is  to  violate  that  general  principle  of 
private  international  law  that  no  man  should  he  condemned 
unheard.  It  is  a  different  case  from  that  of  a  proceeding 
against  'property  of  the  defendant.  In  that  case  a  general 
publication  is  deemed  sufficient  because  it  is  practically  certain 
that  the  owner  will  be  promptly  notified  of  any  blow  aimed  at 
his  property.  But  his  status  is  a  more  intangible  thing,  and 
more  personal  in  its  nature.'^ 

§  93.  Second  Theory  —  Divorce  a  Proceeding  in  Personam. 
—  So  impressed  have  the  New  York  courts  been  by  the  personal 
element  in  the  suit  for  divorce,  and  the  dangers  threatening  the 
non-resident  defendant  under  the  first  theory  that  they  have 
adopted  as  extreme  (and  unjust)  a  view  in  the  other  direction. 
According  to  this  second  theory,  the  personal  element  above 
mentioned  preponderates,  and  causes  a  proceeding  whose  pur- 
pose is  to  dissolve  a  status  to  be  regarded  in  the  light  of  a  pro- 
ceeding in  personam  rather  than  a  proceeding  in  rem  ;  and  the 
same  process  is  required  to  bring  the  defendant  before  the  court 
as  is  required  if  the  design  were  to  fasten  upon  him  or  her  a 
general  pecuniary  liability.  The  New  York  courts  hold  that  no 
foreign  divorce  obtained  in  a  State  where  the  plaintiff  alone  is 
domiciled  will  be  valid  exterritorially,  unless  the  defendant  vol- 
untarily/ appears  or  is  personally  served  with  process  within  the 
territorial  jurisdiction  of  the  divorce  court} 

This  theory  gives  undue  weight  to  the  personal  element  in- 

2  See  Doughty  v.  Doughty,  27  N.  J.  Eq.  315,  325. 

1  Matter  of  Kimball,  155  N.  Y.  62  ;  Williams  v.  Williams,  130  N.  Y.  193  ; 
Cross  w.  Cross,  108  N.Y.  628  ;  Jones  v.  Jones,  108  N.Y.  415  ;  O'Dea  v.  G'Dea, 
101  N.  Y.  23  ;  Collins  v.  Collins,  80  N.  Y.  1  ;  People  v.  Baker,  76  N.  Y.  78, 
32  Am.  Rep.  274  ;  HoflFman  v.  HoflFman,  46  N.  Y.  30.  The  New  York  view 
has  been  adopted  by  a  few  other  courts.  Harris  v.  Harris,  115  N.  0.  587,  20 
S.  E.  187 ;  Cook  v.  Cook,  56  Wis.  195,  43  Am.  Rep.  706,  14  N.  W.  33,  38. 
See  Elder  v.  Reel,  62  Penn.  St.  308,  1  Am.  Rep.  414. 


§  94       FOREIGN    DIVORCE  —  ONE    A   NON-RESIDENT.         205 

volved.  It  magnifies  the  rights  of  the  defendant,  and  goes  far 
to  ensure  that  no  injustice  will  be  done  that  party  ;  but  it  will 
frequently  be  at  the  expense  of  the  plaintiff  and  the  sovereignty 
of  the  plaintiff's  domicil.  It  practically,  in  many  cases,  forces 
a  plaintiff  who  desires  a  divorce,  at  the  very  least  to  seek  out 
the  defendant,  and  sue  in  the  State  selected  by  the  latter,  for  the 
very  reason  perhaps  that  its  laws  are  more  hostile  to  the  plain- 
tiff than  his  or  her  own;  and,  since  the  municipal  laws  of  most 
States  require  the  plaintiff  to  be  domiciled  in  the  State  where 
he  seeks  a  divorce,  this  theory  would  often  compel  him  to  aban- 
don his  own  State  altogether,  and  take  up  his  permanent  resi- 
dence in  the  domicil  of  the  defendant,  or  else  forego  his  right 
to  a  divorce  entirely.  It  pays  no  heed  to  the  sovereignty  of  the 
plaintiff's  domicil  and  its  control  over  his  status,  which  is  just 
as  pronounced  as  that  of  the  defendant's  domicil  over  the  status 
of  the  latter.  These  are  serious  drawbacks  to  this  theory  —  so 
serious  indeed  that  it  is  not  surprising  that  most  courts  have 
rejected  it  as  unsound.^ 

§  94.  Third  Theory  —  Divorce  neither  in  Rem  nor  in  Per- 
sonam, but  Quasi  in  Rem  —  Requires  Best  Notification  prac- 
ticable to  Non-Resident  Defendant.  —  The  third  theoiyi 
adopted  by  the  courts  of  New  Jersey,  is  the  beat  Inpoint  of 
reason,  p^-in^vplo^  ^y^^  imtira  tn  nil  piilii  ,  I  llllllliiinn^  ii~il 
dneathp  affvaTii-p,gpf|  ni  KntTi  \^(^  other  theories,  and  minimizing 
the  disf^dvaT)tages  of  both.  According  to  this  theory,  the  per- 
sonal element  entering  into  a  divorce  suit  is  neither  disregarded 
to  the  extent  of  making  the  divorce  a  proceeding  in  rem,  nor  so 
magnified  as  to  make  it  a  proceeding  in  personam.  It  is  ac- 
corded its  proper  weight,  and  the  divorce  is  regarded  as  a  pro- 
ceeding quasi  in  rem,  that  is,  it  is  suflBciently  a  proceeding  in 
rem,  to  permit  a  court  having  jurisdiction  of  even  part  of  the 
res  to  adjudicate  upon  it,  without  having  to  bring  the  person  of 
the  defendant  within  its  jurisdiction,  either  by  voluntary  ap- 
pearance or  by  service  of  process  within  the  territorial  limits  of 
its  authority;  yet  sufficiently  in  personam  to  require  something 
more  than  a  mere  advertisement  of  the  pendency  of  the  suit,  if 
more  than  that  is  practicable. 

«  See  Dunham  v.  Dunham,  162  111.  589,  35  L.  R.  A.  70,  77-78. 


206         FOREIGN   DIVORCE  —  ONE    A    NON-RESIDENT.       §  94 

Full  effect  is  thus  given  to  the  sovereignty  of  the  plaintiff's 
domicil  and  to  his  or  her  rights.  The  plaintiff  is  permitted  to 
get  the  full  benefit  of  the  divorce  laws  of  his  own  State,  and  is 
not  required  to  go  to  the  State  of  the  defendant  and  subject 
himself  to  its  laws  in  order  to  obtain  his  divorce.  The  juris- 
diction of  the  plaintiff's  domicil  over  his  status  is  recognized 
everywhere.  The  only  limitation  (and  it  is  surely  a  most 
reasonable  one)  is  that  the  non-resident  detendalrtrshould  be 
actually  notified  of  the  pendency  of  the  suit,  where  that  is 
practTcabie,  by  mail,  message,  6Y  actual  seivlce  of  notice  (not 
by  advertisement  merely). 

This~affords  almost  every  protection  to  the  defendant  which 
is  obtained  by  the  New  York  rule,  and  at  the  same  time  leaves 
the  plaintiff's  rights  and  the  sovereignty  of  the  plaintiff's 
domicil  untrammeled,  save  by  a  regulation  for  the  protection  of 
the  absent  defendant,  which,  while  it  can  do  the  plaintiff  no 
injury,  affords  a  protection  against  the  prostitution  of  justice, 
which  it  should  be  the  lofty  aim  of  every  system  of  law  to 
prevent. 

This  theory  does  not  absolutely  demand  in  all  cases,  in  order 
to  an  exterritorial  recognition  of  divorce,  actual  notice  to  be 
given  the  defendant,  but  only  that  the  best  notice  practicable 
be  given  him  or  her.  If  his  address  is  known,  actual  notice  in 
some  form  is  necessary  ;  if  unknown,  only  reasonable  notice 
and  opportunity  to  be  heard  is  required.  Of  course,  therefore, 
the  voluntary  appearance  of  the  defendant  will  supersede  the 
necessity  for  specific  notice.^ 

It  will  be  remembered  that  when  the  decree  directs  that  the 
guilty  party  shall  not  marry  again,  the  better  opinion  is  that 
such  part  of  the  decree  is  in  personam^  not  in  rem,  and  hence 

1  Doughty  V.  Doughty,  27  N.  J.  Eq.  315  ;  Felt  v.  Felt,  57  N,  J.  Eq.  101, 
40  Atl.  436 ;  Magowan  v.  Magowan,  57  N.  J.  Eq.  195,  39  Atl.  364 ;  Flower 
i>.  Flower,  42  N.  J.  Eq.  152,  7  Atl.  669.  See  Whart.  Confl.  L.  §§  236,  237  ; 
Harding  r.  Alden,  9  Greenl.  (Me.)  140,  23  Am.  Dec,  549  ;  Smith  v.  Smith, 
43  La.  Ann.  1140,  10  So.  248 ;  Loker  v.  Gerald,  157  Mass.  42  ;  Burlen  v. 
Shannon,  115  Mass.  438  ;  Van  Orsclal  v.  Van  Orsdal,  67  la.  35,  24  N.  W, 
679. 

2  Ante,  §  74. 


§  95       FOREIGN   DIVORCE  —  COSTS   AND  ALIMONY.  207 

the  court  is  without  jurisdiction  to  make  such  a  decree  against 
a  non-resident  defendant,  unless  he  or  she  has  voluntarily  ap- 
peared, or  (perhaps)  has  been  personally  served  with  process 
within  the  territorial  jurisdiction  of  the  court.  And  even  then, 
such  part  of  the  decree,  being  in  the  nature  of  a  penalty,  will 
be  given  no  exterritorial  effect.* 

§  95.  Exterritorial  Effect  of  Divorce,  as  respects  Costs  and 
Alimony.  —  We  have  in  the  preceding  sections  considered  the 
principles  regulating  the  exterritorial  effect  of  a  divorce  upon 
the  status  of  the  parties.  We  now  come  to  examine  its  effect, 
as  respects  the  incidents  of  the  divorce,  as  in  the  matter  of  the 
costs  of  the  suit,  alimony,  or  the  custody  of  minor  children. 

With_regard  to  so  much  of  the  decree  as  relates  to  the  costs 
of  the  suit  and  alimony  to  the  wife  it  is  to  be  observed  that, 
so  far  as  the  court  undertakes  to  decree  against  the  defendant 
for  a  sum  of  money,  the  decree  is  a  proceeding  in  personam. 
It  seeks  io  fasten  up6Ti  the  defendant  a  general  pecuniary  Ita- 
bilitv.  Hence? as  in  the  case  of  other  pr^i'^^v^lingi  i*?  jprrtrmrmj 
no  exterritnrinil  forftn  will  ho  givrn  thp  f^nnrt^^sdep.ree  in  this 
respect  unless  the  defendant  is  within  the_court'a  juriadictioTij 

ftitbftr  hy  vnniTit:a.ry  appftaraTipp  nr  hy  poi"inTini1  iPtvice  of  process 

there.  ^ 

!Kt)r,  under  the  constitutional  provision  that  no  State  shall 
deprive  any  person  of  life,  liberty,  or  property,  without  due 
process  of  law,  would  it  be  within  the  bounds  even  of  the  mu- 
nicipal law  of  any  State  of  this  Union  to  give  its  courts  jurisdic- 
tion to  make  such  a  personal  decree  against  an  absent  defendant, 
not  served  with  personal  process  nor  voluntarily  appearing.* 
But  if  a  defendant  is  a  non-resident,  it  is  proper,  even  upon  an 

^  Cooper  V.  Reynolds,  10  Wall.  308  ;  De  La  Montanya  v.  De  La  Montauya, 
112  Cal.  101,  32  L.  R.  A.  82,  87;  Rodgers  v.  Rodgers,  56  Kan.  483,  43  Pac. 
779  ;  Dow  v.  Blake,  148  lU.  76,  35  N.  E.  761,  764  ;  Bullock  v.  Bullock,  51 
N.  J.  Eq.  444,  27  Atl.  435  ;  Stewart  v.  Stewart,  27  W.  Va.  167  ;  Kline  v. 
Kline,  57  la.  386,  10  N.  W.  825,  826  ;  Prosser  i'.  Warner,  47  Vt.  667,  19 
Am.  Rep,  132,  134.  See  Thurston  v.  Thurston,  58  Minn.  279,  59  N.  W.  1017  ; 
Blackinton  v.  Blackinton,  141  Mass.  432,  436  ;  Barber  v.  Barber,  21  How. 
582. 

2  Cooley,  Const.  Lim.  400  et  seq.  ;  Pennoyer  v.  NeflF,  95  U.  S.  714.  But 
see  Blackinton  v.  Blackinton,  141  Mass.  432,  436. 


208      FOREIGN  DECREE  FOR  CUSTODY  OF  INFANTS.      §  96 

order  of  publication,  without  personal  service  or  appearance,  to 
provide  for  the  seizure  and  appropriation  of  the  defendant's 
property  within  the  State,  to  make  good  the  costs  or  alimony 
decreed;  for  to  the  extent  of  the  property  thus  seized  the  decree 
would  cease  to  be  in  personam,  and  would  become  a  decree  in 
rem.  But  any  part  of  the  personal  liability  imposed  by  the 
decree  in  excess  of  the  value  of  such  property  would  still  be  in 
personam  only,  and  must  conform  to  the  requirements  for  such 
proceedings,  touching  the  notice  to  be  given  the  defendant,  or 
else  it  will  be  void  both  exterritorially  and  intra-territorially.' 

§  96.  Exterritorial  Effect  of  Decree  for  Custody  of  Minor 
Children.  —  This  is  one  of  the  usual  incidents  of  a  divorce. 
Being  nothing  less  than  a  determination  of  the  guardianship  of 
the  children,  it  is  a  question  of  doitble  status,  relating  no  less 
to  the  status  of  the  children  than  to  that  of  the  respective 
parents.  The  decree  for  the  children's  custody  therefore  is  as 
much  a  decree  in  rem  as  is  the  divorce  itself,  but  with  a  more 
extended  res.  The  res  in  this  case  is  not  only  the  status  of  the 
parents,  but  of  the  children  also.  But  the  children  being  in- 
fants, their  domicil  is  necessarily  with  one  or  the  other  of  their 
parents  (usually  with  the  father),  and  the  legal  situs  of  their 
status  is  at  their  domicil. 

As  we  shall  see  however  in  discussing  the  status  of  Guardian- 
ship,* the  jurisdiction  to  appoint  guardians  of  infants  is  not 
wholly  confined  to  the  courts  of  the  ward's  domicil.  The  courts 
of  a  State  where  an  infant  has  his  actual  situs  or  has  property 
will  also  sometimes  assume  a  like  jurisdiction,  though  due 
weight  should  always  be  accorded  the  domiciliary  appointment. 

Until  the  divorce  takes  place,  and  it  is  established  that  the 
father  is  unfit  to  have  the  custody  of  the  infant  children,  their 
domicil  must  be  presumed  to  follow  his.  Hence,  primarily  and 
theoretically  the  courts  of  the  father's  domicil  alone  should  have 
the  power  to  decree  the  custody  of  the  children  to  the  mother, 
so  as  to  give  the  decree  any  exterritorial  effect;  for  they  alone 

»  Cooley,  Const.  Lim.  406 ;  Pennoyer  v.  Neff,  95  U.  S.  714  ;  Thurston  v. 
Thurston,  58  Minn.  279,  59  N.  W.  1017  ;  Van  Orsdal  ».  Van  Orsdal,  67  la. 
36,  24  N.  W.  579  ;  Wesner  r.  O'Brien,  56  Kan.  724,  32  L.  R.  A.  289. 

1  Post,  §§  114  et  seq. 


§  96      FOBEIGN  DECREE  FOR  CUSTODY  OF  INFANTS.      209 

have  complete  jurisdiction  of  the  entire  res,  —  of  the  status  of 
the  father  and  children  by  reason  of  domicil,  and  of  the  status 
of  the  mother  (whether  resident  or  not)  by  reason  of  the  fact 
that  her  status  as  wife  and  mother  is  inseparable  from  that  of 
her  husband  and  children.  Practically,  however,  the  control  of 
the  courts  of  the  husband's  domicil  is  complete  and  perfect  only 
when  the  actual,  as  well  as  the  legal,  situs  of  the  infant  chil- 
dren is  within  its  territory.  If  the  children  are  actually  else- 
where, the  court  can  exercise  no  real  control  over  their  custody, 
and  it  may  even  be  doubted  whether  any  exterritorial  effect 
should  be  accorded  such  a  decree.' 

But  in  the  nature  of  things  the  guardianship  of  an  infant 
must  be  of  a  more  or  less  temporary  character.  It  is  not  per- 
manent and  continuous  like  the  status  of  marriage.  It  never 
endures  longer  than  the  minority  of  the  ward.  And  even  within 
that  period  circumstances  may  frequently  arise  which  demand 
that  a  new  guardian  should  be  appointed.  The  ward  may  alter 
his  domicil  and  thus  come  under  a  new  law  and  a  new  set  of  tri- 
bunals, which  may  disapprove  of  the  guardian  already  appointed 
or  of  the  powers  conferred  upon  him;  or  the  ward  may  be  actu- 
ally situated  in  a  State  other  than  his  domicil  under  circum- 
stances demanding  that  his  person  or  his  property  rights  should 
be  safeguarded  there  also.  Thus  the  status  of  wardship  is  one 
which  is  liable  to  shift  and  change  with  circumstances.  In  this 
respect  it  differs  from  the  marriage  status  or  the  status  result- 
ing from  the  dissolution  thereof.  Once  validly  established  the 
latter  is  permanent  until  dissolved  by  death  or  divorce,  and  once 
validly  dissolved,  the  dissolution  is  as  permanent  as  the  original 
status,  no  matter  into  what  country  the  parties  may  thereafter 
come.  As  just  shown,  this  is  not  true  of  the  status  of  guardian- 
ship. It  is  a  local  and  temporary,  not  a  universal  and  perma- 
nent, status.     Hence  a  change  of  domicil  on  the  part  of  the 

3  See  Cooley,  Const.  Lira.  404 ;  Kline  v.  Kline,  57  la.  386,  10  N.  W.  825, 
826  ;  De  La  Montanya  v.  De  La  Montanya,  112  Cal.  101,  32  L.  R.  A.  82,  87  ; 
Rodgers  v.  Rodgers,  56  Kan.  483,  43  Pac.  779.  See  Pawling  v.  Bird,  13 
Johns.  (N.  Y.)  192,  209.  Indeed  these  authorities  seem  to  indicate  that  it  is 
the  actual,  rather  than  the  legal,  situs  of  the  children  that  confers  jurisdic- 
tion to  decree  concerning  their  custody. 

14 


210      FOREIGN  DECREE  FOR  CUSTODY  OP  INFANTS.      §  96 

children,  or  the  mere  presence  of  the  children  in  another  juris- 
diction under  different  circumstances,  may  cause  the  courts  of 
those  States  to  assume  jurisdiction  to  decree  their  custody  to 
another  guardian  of  their  own  appointment.  This  does  not 
necessarily  imply  a  denial  of  full  exterritorial  effect  to  the 
first  decree,  for,  the  status  being  temporary  only,  the  courts  of 
that  very  State  might  subsequently  change  the  guardian.* 

*  See  post,  §§  114  et  seq. 


§  97      LEGITIMACY  AND  ADOPTION,  DOUBLE  STATUS.      211 


CHAPTER  VIII. 

STATUS    OF   LEGITIMACY   AND  ADOPTION. 

§  97.    Legitimacy  and  Adoption  Instances  of  Double  Status. 

—  We  have  seen  that  in  the  case  of  marriage,  the  status  created 
is  of  a  double  or  correlative  character.  The  status  of  husband 
cannot  exist  without  the  status  of  wife  also.  So  it  is  with  a 
parent  and  an  infant  child.  It  so  happens  however  that  in 
these  cases  the  duality  of  the  status  is  generally  immaterial, 
so  long  as  the  relation  continues.  No  conflicts  of  the  ' '  proper 
law  "  will  usually  occur,  because  the  domicil  of  the  wife  and  of 
dhe  infant  child  are  in  most  cases  identical  with  the  domicil  of 
the  husband  and  parent,  and  hence  the  same  law  will  in  general 
govern  the  status  of  both. 

No  questions  of  the  conflict  of  laws  will  be  ordinarily  likely 
to  arise  in  regard  to  the  relation  of  parent  and  child,  both  for 
the  reason  above  given  and  for  the  further  reason  that  the  laws 
governing  that  relation  are  pretty  much  the  same  the  world  over. 
Occasionally,  however,  cases  arise  in  which  this  simple  relation 
must  be  subjected  to  the  principles  of  private  international 
law.^ 

Nor  with  respect  to  the  marital  relation  and  its  incidents  will 
the  duality  of  the  status  of  husband  and  wife  in  general  play  a 
prominent  part,  so  long  as  the  marriage  remains  intact,  for  the 
reason  above  given.  It  is  only  when  the  matrimonial  union  is 
sought  to  be  dissolved  by  divorce,  when  the  interests  of  husband 
and  wife  become  antagonistic,  that  they  acquire  separate  dom- 
icils,  and  the  situs  of  their  respective  status  become  distinct. 
Then  the  duality  of  the  status  becomes  embarrassing,  as  has 
been  shown  in  the  last  chapter. 

^  Inatances  of  this  kind  have  been  already  discussed.     See  ante,  §§  83,  96. 


212      LEGITIMACY  AND  ADOPTION,  DOUBLE  STATUS.      §  97 

There  are  still  other  instances  of  double  status,  two  of  which 
at  least  deserve  special  attention.  These  are  the  status  of  legiti- 
macy and  of  adoption.  Whether  one  is  the  legitimate  child  of 
a  person  involves  necessarily  the  status  of  the  parent  as  well  as 
that  of  the  child.  So  it  is  also  in  the  case  of  a  legally  adopted 
child.  In  these  cases,  it  is  not  only  the  status  of  the  child 
which  is  to  be  determined,  but  incidentally  and  necessarily  that 
of  the  parent  also.  These  instances  of  double  status  differ  from 
the  relation  of  husband  and  wife  and  from  that  of  parent  and 
child,  in  the  important  point  that  it  is  not  necessarily  the  case, 
in  legitimacy  and  adoption,  that  the  domicil  of  the  child  and 
parent  should  be  identical.  This  fact  complicates  the  situation 
greatly.  In  such  cases  therefore,  granting  the  general  principle 
that  the  law  of  the  legal  situs  or  domicil  of  the  parties  governs 
their  status,  the  question  may  still  arise,  the  law  of  whose  dom- 
icil ?  Shall  it  be  the  law  of  the  domicil  of  the  parents  or  one 
of  them,  or  the  law  of  the  child's  domicil  ?  The  status  of  all 
is  in  doubt.  In  investigating  these  questions,  one  or  two  gen- 
eral principles  must  be  constantly  borne  in  mind. 

Both  leigitimacy  and  adoption  are  instances  of  permanent  and 
universal  stattis  (as  opposed  tothat  which  is  mereFp?gm7?orary 
and  local,  as  in  the  case  of  guardian ghipj  ci^r-  J  It  would  be  in 
the  highest  degree  inconvenient  if  a  status  of  this  sort,  once 
established,  were  liable  to  fluctuation  and  change  with  time, 
place,  or  circumstance.''  Hence,  when  these  relations  are  once 
established  by  "the  proper  law,"  they  remain  in  general  fixed 
and  unchangeable,  into  whatsoever  countries  the  parties  may 
wander,  or  wheresoever  the  question  may  arise,  subject  only 
(in  rare  cases)  to  the  exceptions  enumerated  in  the  second 
chapter.* 

It  is  a  corollary  of  this  principle  that  it  is  the  proper  law 
at  the  time  of  the  act  or  circumstance  upon  which  is  based  the 
claim  of  legitimacy  or  adoption,  that  is  to  determine  the  status. 
For  since  the  claim  is  based  on  the  act  or  circumstance  in  que&- 

*  See  Miller  v.  Miller,  91  N.  Y.  315,  319,  43  Am.  Rep.  669. 

»  Smith  V.  Kelly,  23  Miss.  167,  55  Am.  Dec.  87;  Miller  v.  Miller,  91  N.  Y. 
315,  319,  43  Am.  Rep.  669  ;  Ross  v.  Ross,  129  Mass.  243,  37  Am.  Rep,  321 ; 
A^ams  r.  Adams,  154  Mass.  290,  293,  28  N.  £.  260. 


§  98         LEGITIMACY  —  CHILD   BORN   IN   WEDLOCK.  213 

tion,  and  since,  if  such  act  or  circumstance  does  by  the  proper 
law  create  the  status,  that  status  will  be  permanent  and  un- 
changeable, it  must  follow  that  the  law  at  that  time  properly 
applicable  must  determine  finally  the  effect  of  the  act  or  circum- 
stance upon  the  status  of  the  persons  concerned.* 

The  question  still  remains,  what  is  the  ^^ proper  law"  in 
these  cases  ?  Is  it  the  lex  domicilii  of  the  parents,  of  the  child 
(supposing  his  domicil  to  be  different  from  that  of  his  parents 
or  of  either  of  them),  or  of  both  ?  If  it  is  urged  that  the  status 
of  the  parent  is  affected,  and  that  the  law  of  his  domicil  should 
govern,  it  might  be  replied  that  the  child's  status  is  as  much,  if 
not  more,  affected,  and  that  therefore  the  law  of  his  domicil  should 
control.  Very  complicated  questions  sometimes  arise  in  these 
cases. 

§  98.  Legitimacy  —  Child  Born  in  Wedlock.  —  Legitimacy 
may  exist  from  birth,  or  it  may  arise  subsequently  from  a  super- 
venient cause.  With  respect  to  the  legitimacy  of  a  child  born 
in  lawful  wedlock,  of  course  no  question  will  arise,  since  every 
system  of  law  that  recognizes  marriage  regards  such  a  child  as 
legitimate.  Indeed  one  of  the  principal  designs  of  the  estate  of 
matrimony  is  to  secure  certainty  of  parentage  and  the  legitimacy 
of  children. 

The  only  question  apt  to  occur  here  is  with  regard  to  the 
validity  of  the  marriage,  and  the  effect  of  its  invalidity  upon 
the  legitimacy  of  the  issue.* 

At  common  law,  if  the  marriage  is  void  per  se  or  declared  void 
by  a  competftnf;  ^n^iyf^  thn  i^guc  is  baotardiaetL  -But  m  many 
States,  statutes  have  been  passed  abating  the  rigor  of  ^^f^  r>r>rp- 
mon  law  in  this  respect,  and  declaring  the  issue  of  such  mar- 
riages legitimate.  It  is  important  tu  aauti'ljaiB  what  offoct  luch 
statutes  wfil  have  upon  the  status  of  the  children  of  void  or  void- 
able marriages,  when  the  question  arises  in  a  foreign  State. 

*  See  Smith  v.  Kelly,  23  Miss.  167,  55  Am.  Dec.  87. 

1  The  proper  law  governing  the  validity  of  marriage  has  been  already  dealt 
with,  both  with  respect  to  the  capacity  to  marry  (ante,  §§  73  et  seq.),  and 
with  regard  to  the  formal  and  substantial  validity  of  the  marriage  contract. 
Ante,  §§  77,  78.  See  Greenhow  v.  James,  80  Va.  636 ;  Adams  v.  Adams,  154 
Mass.  290,  292,  28  N.  E.  260. 


214  LEGITIMACY  —  CHILD   BORN   IN   WEDLOCK.         §  98 

The  g&nftral  riilft  )>fting  that  the  law  of  the  domicil  regulates 
the  status,  if  the  father,  mother,  and  child  are  all  domiciled  at 
the  time  of  the  child's  hirth  in  the  same  State^  the  law  of  that 
State  wH-iiT  thfi  stat.^is.  Tf  ig  ihp.  law  nf  flip  donijfi^"^^  ^^^  tim© 
of  the  child's  hiirth  which  controls,  for  the  claim  of  Ms  legitimacy 

is  haggj^iipnn  thft  riirr^nmatnnrf^  of  l^i°    hirth    in    onprllru^^\^r,n^ 

unlawful). 

A  much  more  difficult  question  might  arise,  if  the  mother's 
domicil  ^s  different  from  that  of  the  father  at  the~Rmg  of  the 
child's  hirth,  should  there  be  a  conflict  in  tiie - laws]^^~the  two 
domicils  upon  this  point.'  The  first  question  would  be  as  to  the 
child's  domicil  in  such  case.  Will  it  follow  the~3oHrrcil  of  the 
father  or  that  ■rvf^hgjri^thpr '-^  'Vo  hr'ld  that  it  takes  \he  father' f^ 
domicil^^ould  be^  to  n^^nmn  thnt  it  '^<^  ft  If  [iritiTnatR_chi1fi,  the 
very  point  in  dispute.  It  would  seem  that  the  child's  domicil 
must  be  h'^IH  t'^  t""""wJibHit  "^^  t^f^  motfi^r,  M^^t^!  itJsjT^?^T7tpf|  by 
the  proper  law  to  be  legitimate. 

The  next  question  is,  what  is  the  proper  law  to  determine 
whether  the  child  be  legitimate  ?  The  child  is  legally  domi- 
ciled with  its  mother,  and  the  State  of  their  domicil  will  control 
their  status,  while  the  status  of  the  father,  as  being  a  legal  or 
only  a  putative  father,  must  be  regulated  by  the  law  of  his  dom- 
icil. !No  law  of  one  State  affecting  the  status  of  those  domiciled 
there  can  run  into  another  State  and  affect  the  status  of  the  lat- 
ter's  citizens.  The  embarrassment  of  the  situation  is  easily  rec- 
ognized. There  are  no  authorities  to  guide  us  upon  the  point, 
and  any  conclusions  drawn  must  be  largely  speculative. 

The  true  solution  would  seem  to  depend  upon  the  locality  of 
the  forum  and  the  nature  of  the  particular  question  involved. 
If  the  case  arises  in  the  father's  domicil,  the  courts  of  his  domi- 
cil will  probably  follow  their  own  law  in  passing  upon  the  status, 
especially  if  it  is  the  relation  the  child  bears  to  the  father  which 
is  in  controversy.  If  the  mother's  domicil  is  the  forum,  its 
courts  also  will  probably  follow  the  domestic  law,  especially  if 

2  If  a  marriage  is  void  per  se,  or  avoided  ab  initio  by  a  competeut  court,  it 
might  well  Iiappen  that  the  woman's  domicil  at  the  date  of  the  child's  birth  is 
distinct  from  the  man's,  if  they  actually  reside  in  different  States.  See  ante, 
§63, 


§  99  SUBSEQUENT   LEGITIMATION.  215 

the  child's  relation  to  the  mother  is  in  issue.  Should  the  ques- 
tion come  up  in  the  courts  of  a  third  State  where  none  of  the 
parties  are  domiciled,  it  is  probable,  upon  principles  mentioned 
in  the  succeeding  sections,  that  the  courts,  out  of  tenderness  to 
the  child,  will  recognize  his  legitimacy,  adopting  the  law  of  the 
father's  domicil  or  that  of  the  mother  and  child,  according  as 
one  or  the  other  advances  this  benevolent  purpose.' 

§  99.  Subsequent  Legitimation  —  Intermarriage  of  Parents 
of  Infant  Bastard.  —  The  laws  "of  different  States  vary  touch- 
ing the  subsequent  legitimation  of  bastards.  At  common_law 
no  sitjpewi^nient  act  could  legitimate  one  not  born  in  wedlock. 
But  the  cjjlL-oi'  Eoman  law  pormittod  ii7"an^  now  injjmist  of 

f>io^gfSf^  ^f  fTiiq  TTninn   t\nn\\   lofirjf imntinyi  Ja^allrtwpH   by  Statute. 

Even  amongst  those  States  which  permit  it,  howevci,  difftJreuces- 
exist  with  respect  to  the  mode  of  accomplishing  it.  By  the 
municipal  law  of  some  States  a  subsequent  intermarriage  of  the 
parents  standing  alone  will  effect  this  result  ;  in  other  States, 
the  father's  acknowledgment  alone  suffices  ;  and  in  others  there 
must  be  both  an  intermarriage  and  an  acknowledgment  by  the 
father. 

In  all  cases  where  the  intermarriage  of  the  parents  precedes 
or  accompanies  the  alleged  legitimation  of  an  infant  bastard, 
there  is  no  difficulty  in  ascertaining  the  domicil  of  the  parties. 
For  as  soon  as  the  father  marries  the  mother,  his  domicil  be- 
comes hers  also,  and  the  domicil  of  the  infant  bastard  changes 
with  hers  and  also  becomes  that  of  the  husband.^  Whether  the 
intermarriage  alone  or  the  intermarriage  followed  by  acknowl- 
edgment is  necessary  to  legitimate  the  issue,  the  result  is  the 
same  ;  all  the  domicils  coincide  and  are  identical  with  that  of 
the  father.  We  Kn,vn  ;t.lTi-.Ti-1y  aAori  \-\\^\.  ^<the  proper  law"  to 
determine  legitimation  is  the  law  of  the  domicil  of  the  parties  at 
the  time^ot  tne  actupon  which  ifl  h^nflfl  thn  niaim  ot  legitimacy.' 
In  this  case  this  act  is  the  intermarriage  of  the  parents  (or  the 

'  For  the  principles  applicable  to  cases  of  this  sort  the  reader  is  referred  to 
the  discussion,  post,  §  100. 

^  See  ante,  §  42.  If  the  bastard  is  an  adult,  his  domicil  is  of  coarse  iiiuif' 
fected  by  the  intermarriage  of  his  parents. 

«  Ante,  §  97. 


216  SUBSEQUENT   LEGITIMATION.  §  99 

intermarriage  followed  by  the  father's  acknowledgment),  and 
this  intermarriage  gives  all  the  parties  the  same  domicil,  —  that 
of  the  father. 

It  must  necessarily  follow,  therefore,  that  the  lex  domicilii  of 
the  father  at  that  time  is  '*the  proper  law"  to  determine  the 
child's  status,  as  bastard  or  legitimated,  in  all  cases  where  an 
intermarriage  of  the  parents  precedes  or  forms  a  component  part 
of  the  steps  required  for  legitimation.  If  by  that  law  he  is 
thereby  rendered  legitimate,  he  will  be  regarded  as  legitimated 
everywhere,  even  in  States  whose  laws  do  not  recognize  subse- 
quent legitimation.  If  by  that  law  he  is  not  rendered  legitimate, 
neither  will  he  be  so  regarded  anywhere,  even  where  such  legiti- 
mation is  recognized,  and  though  by  the  law  of  the  infant's  (and 
mother's)  domicil  before  the  marriage  the  acts  done  would  suffice 
to  legitimate  him.' 

The  English  courts  seem  to  have  adopted  a  principle  with 
regard  to  this  matter,  for  which  it  is  difficult  to  assign  any 
sufficient  reason.  They  hold  that  it  is  the  law  of  the  father's 
domicil  at  the  time  of  the  birth  of  the  child  which  should 
determine  the  effect  of  a  subsequent  marriage  of  the  parents, 
not  the  law  of  the  father's  domicil  at  the  time  of  the  act  upon 
which   is   based   the   claim    of    legitimation.*      The    English 

»  See  Whart.  Confl.  L.  §  241  ;  Sheddon  v.  Patrick,  5  Paton,  194  ;  s.  c. 
1  Macq.  535,  622  ;  Strathmore  Peerage,  4  Wils.  &  Shaw,  Appendix,  89-91,  93, 
94 ;  8.  c.  6  Paton,  645  ;  Monro  v.  Saunders,  6  Bligh,  N.  R  468  ;  Birtwhistle 
V.  Vardill,  2  CI.  &  F.  571,  587,  592,  595,  600;  Munro  v.  Monro,  7  CI.  &  F.  842, 
885 ;  Dalhousie  v.  M'Dooall,  7  CI.  &  F.  817  ;  Aikman  v.  Aikman,  3  Macq.  854; 
Don's  Estate,  4  Drewry,  194  ;  In  re  Grove,  40  Ch.  Div.  216  ;  Shaw  v.  Gould, 
L.  R.  3  H.  L.  55,  70  ;  Miller  v.  Miller,  91  N.  Y.  315,  43  Am.  Rep.  669  ; 
Smith  V.  Kelly,  23  Miss.  167,  55  Am.  Dec.  87  ;  Ross  v.  Ross,  129  Mass.  243, 
249,  37  Am.  Rep.  321  ;  Loring  v.  Thorndike,  5  Allen  (Mass.),  257  ;  Smith  v. 
Derr,  34  Penn.  St.  126,  75  Am.  Dec.  641;  Wolf's  Appeal  (Penn.),  13  Atl. 
760  ;  Woodward  r.  Woodward,  87  Tenn.  644,  11  S.  W.  892,  895.  See  Blythe 
V.  Ayres,  96  Cal.  532,  31  Pac.  915,  19  L.  R.  A.  40. 

♦  Dicey,  Confl.  L.  497  et  seq.  ;  Jac.  Dom.  §  30  ;  Udny  v.  Udny,  L.  R. 
1  Sc.  App.  441,  447  ;  Wright's  Trosts,  2  K.  &  J.  595  ;  Goodman's  Trusts, 
L.  R.  17  Ch.  D.  266  ;  Goodman  v.  Goodman,  3  Giflf.  643.  See  also  Miller  r. 
Miller,  91  N.  Y.  315,  43  Am.  Rep.  669.  But  some  of  the  English  decisions 
faTor  the  law  of  the  father's  domicil  at  the  time  of  the  marriage.  See 
Aikman  v.  Aikman,  3  Macq.  (H.  L.)  854 ;  Munro  v.  Munro,  7  CI.  &  F.  842  ; 
Dalhousie  v.  M'Douall.  7  CI.  &  F.  817  ;  Whart.  Confl.  L.  §  241. 


§  99  SUBSEQUENT  LEGITIMATION.  217 

decisions  seem  to  rest  upon  the  theory  that  the  subsequent 
marriage,  in  order  to  legitimate  a  bastard,  must  by  relation  be 
considered  as  taking  effect  at  the  time  of  the  child's  birth,  so 
that  he  may  be  held  to  have  been  born  in  wedlock.'  This  is  a 
very  unnecessary  fiction,  contrary  both  to  truth  and  reason. 
Two  prominent  causes  may  be  assigned  for  the  rule  of  law  pro- 
hibiting bastards  to  assume  the  status  of  legitimate  children. 
One  is  the  encouragement  which  would  otherwise  be  given  to 
illicit  amours.  The  other  is  the  practical  difficulty  of  ascer- 
taining with  certainty  who  is  the  father  of  the  child.  Both  of 
these  objections  are  in  large  measure  removed  or  remedied  by 
a  subsequent  intermarriage  of  the  parents,  and  it  is  surely 
needless  to  go  further  back  than  the  ipse  dixit  of  the  law  itself 
in  order  to  pronounce  the  issue  legitimate.  The  fiction  that 
the  law  in  such  cases  '♦  assumes  that  what  is  equivalent  to  mar- 
riage took  place  before  the  birth  or  conception  of  the  child  "  • 
is  not  only  unnecessary,  but,  if  it  came  from  a  less  distin- 
guished source,  might  be  characterized  as  fantastic. 

The  true  rule,  if  the  legitimation  is  based  upon  the  inter- 
marriage of  the  parents  as  the  final  act  necessary  to  complete  it, 
is  that  the  law  of  the  father's  domicil  at  the  time  of  the  mar' 
riage  (which  will  also  be  that  of  the  mother  and  child)  should 
determine  the  status  of  both  father  and  child.  But  if  the 
marriage  of  the  parents  does  not  of  itself  complete  the  legiti- 
mation, there  being  still  requisite  after  the  marriage  some 
other  act,  such  as  the  father's  acknowledgment  of  the  child, 
the  law  of  the  father's  (and  minor's)  domicil  at  the  time  of  the 
last  act  essential  to  complete  the  legitimation  should  control.^ 

It  should  be  observed  also  that  since  the  status  of  legitima- 
tion, once  created  or  denied  under  the  proper  law  at  the  time  of 
the  act  by  virtue  of  which  it  is  alleged  to  have  arisen,  is  z.  per- 
manent and  universal  status,  a  subsequent  removal  of  the  par* 

«  See  Munro  v.  Munro,  7  CI.  &  F.  842,  872. 

•  See  Lord  Chancellor  Cottenham's  opinion  in  Munro  v.  Munro,  7  CI.  & 
F.  842,  872. 

^  See  Ross  v.  Ross,  129  Mass.  243,  256,  37  Am.  Rep.  321 ;  Aikman  n 
Aikman,  3  Macq.  (H.  L.)  854  ;  Munro  v.  Munro,  7  CI.  &  F,  (H.  L.)  848f 
Dalhousie  v.  M'Douall,  7  CI.  &  F.  817 ;  Whart.  Confl.  L.  §  241. 


218  SUBSEQUENT   LEGITIMATION.  §  100 

ties'  domicil  to  another  State,  by  whose  law  the  act  in  question 
(if  performed  there)  would  have  caused  a  different  result,  will 
not  alter  the  status.  There  must  be  some  new  act  done  in  the 
latter  State  under  its  law  to  legitimate  a  child  not  legitimated 
by  the  former  act.  And  if  the  child  be  legitimated  under  the 
law  of  the  first  State,  its  status  becomes  a  beneficial  one  which 
no  subsequent  act  of  the  father  under  any  law  should  be  per- 
mitted to  destroy.* 

§  100.  Bastard  an  Adiilt  vrhen  Parents  Marry  —  No  Inter- 
marriage of  Parents.  —  In  the  preceding  section  we  have  sup- 
posed the  case  of  an  intermarriage  of  the  parents  while  the 
bastard  is  an  infant.  If  the  bastard  is  an  adult  at  the  time  of 
his  parents'  marriage,  or  if  no  marriage  occurs,  a  different 
state  of  facts  is  presented  from  those  appearing  in  the  former 
case.  In  the  former  case,  the  infant  bastard's  domicil  becomes 
by  virtue  of  the  marriage  that  of  the  father,  and  hence  the 
status  of  both  will  be  governed  by  the  same  law. 

But  if  the  bastard  is  an  adult  at  the  time  of  the  marriage, 
or  if  there  be  no  marriage  between  the  parents  (the  act  re- 
lied upon  to  establish  the  legitimation  being  some  act  other 
than  the  parents'  marriage,  such  as  a  mere  acknowledgment 
by  the  father,  or  an  act  of  the  legislature),  the  circumstances 
may  be  different.  In  such  case  the  domicil  of  the  bastard  is 
not  necessarily  identical  with  that  of  his  father  at  the  time  of 
the  legitimating  act,  and  their  status  may  thus  be  subject  to 
different  laws.  Under  such  circumstances,  shall  the  law  of  the 
father's  domicil  govern  the  status  of  both?  If  so,  the  status 
of  the  bastard  will  be  permanently  fixed  by  the  law  of  a  State 
of  which  he  is  not  a  citizen,  and  which  has  no  claim  of  jurisdic- 
tion over  him.  Shall  the  law  of  the  bastard's  domicil  govern  ? 
If  so,  the  father's  status  will  equally  be  fixed  by  a  law  which 
has  properly  no  control  over  him.  It  is  a  more  difficult  task  to 
ascertain  the  proper  law  in  a  case  of  this  sort  than  in  one  like 
that  mentioned  in  the  preceding  section. 

Two  points  should  be  noticed  in  this  connection,  which  will 
aid  US- to  determine  the  proper  law  in  this  case.     The  first  ia 

•  Smith  V.  Kelly,  23  Miss.  167,  55  Am.  Dec.  87. 


§  100  SUBSEQUENT   LEGITIMATION.  219 

that  the  legitimation  of  a  bastard  is  the  creation  of  a  status 
which  is  beneficial  to  him,  and  it  should  be  presumed  in  his 
favor  whenever  adequate  reason  exists  for  such  a  course.  The 
second  is  that  this  beneficial  status  cannot  be  accorded  the  in- 
fant at  the  expense  of  a  change  of  status  on  the  part  of  the 
father  not  warranted  by  his  domiciliary  law.^ 

Ajjl^lying  these  two  principleSt-lt-follaffi&JhaLjhe  law  of  the 
father' s-domicil  at  the  time  of  tbft  iRjjitimating  ant  will  bo  tTTo 
proper  law  to  detfirF'T"*^  ^"br'  'nfntnn  ni  hn^h  parties.  If  by  that 
law  the  act  in  question  legitimates  the  bastard,  the  beneficial 
status  thus  created  will  in  general  be  recognized  everywhere, 
including  the  bastard's  domicil,  though  by  the  law  of  the  lat- 
ter State  the  act  would  not  suffice  to  create  a  legitimation.*  On 
the  other  hand,  if  by  the  law  of  the  father's  domicil  legitima- 
tion is  not  the  result  of  the  act  claimed  to  have  that  effect, 
though  under  the  bastard's  domiciliary  law  legitimation  would 
result  therefrom,  the  status  of  legitimation  should  not  be  con- 
ferred upon  the  bastard,  for  that  would  be  to  subject  the  status 
of  the  father  to  a  law  to  which  it  is  not  properly  subject. 

These  principles  are  as  yet  but  scantily  exemplified  by  de- 
cided cases,  most  of  the  decisions  being  instances  of  legitima- 
tion by  intermarriage,  where  the  bastard  was  an  infant.  Such 
as  have  arisen,  however,  have  been  decided  in  accordance  with 
the  foregoing  views. 

In  Scott  V.  Key,'  a  father  and  his  illegitimate  son  were  both 
domiciled  in  Arkansas.  The  legislature  of  that  State  passed  an 
act  legitimating  the  child,  and  it  was  held  in  Louisiana  that 
this  legitimation  should  be  recognized  there  to  the  same  extent 
as  in  Arkansas.     The  legitimated  bastard  was  permitted  to  in- 

1  Except  perhaps  that  the  courts  of  the  bastard's  domicil,  when  the  ques- 
tion arises  there,  might  enforce  the  lex  fori  and  legitimate  him,  especially 
should  the  father  do  the  act  (upon  which  is  based  the  claim  of  legitimation) 
in  the  State  of  the  bastard's  domicil,  thereby  voluntarily  submitting  himself 
to  the  operation  of  its  law. 

'  Under  exceptional  circumstances,  if  the  question  should  arise  in  tha 
ba.stard's  domicil,  and  the  interests  of  the  forum  or  of  its  citizens  demand  it, 
the  lex  fori  might  still  be  substituted  for  "the  proper  law." 

«  11  La.  Ann.  232. 


220  SUBSEQUENT   LEGITIMATION.  §  100 

herit  the  father's  land  in  Louisiana  to  the  exclusion  of  the 
father's  brothers  and  sisters. 

In  Lingen  w.  Lingen,*  the  domicil  of  the  father  was  not  the 
same  as  that  of  the  bastard.  The  case  arose  in  the  father's 
domicil  (Alabama).  The  child's  mother  was  a  Frenchwoman,  and 
the  child  was  born  in  France,  where  the  father  acknowledged 
him  to  be  his  son,  but  did  not  marry  the  woman.  By  the  law 
of  France,  the  mere  acknowledgment  by  the  father  sufficed  to 
render  the  child  legitimate.  It  was  otherwise  in  Alabama. 
Upon  the  death  of  the  father,  the  bastard  claimed  a  share  of 
his  estate  as  his  legitimate  child.  But  the  court  held  that  his 
legitimation  was  to  be  governed  by  the  law  of  the  father's,  not 
the  hastard^s,  domicil. 

Just  the  opposite  case  arose  in  the  recent  case  of  Blythe  v. 
Ayres.^  Here  too  the  question  arose  in  the  father's  domicil 
(California)  upon  a  claim  by  his  bastard  daughter,  domiciled  in 
England,  to  a  share  of  his  property  in  California.  Her  father 
had  acknowledged  her  to  be  his  daughter,  which  under  the  law 
of  California  sufficed  to  legitimate  her.  By  the  law  of  her  own 
domicil  (England),  no  subsequent  act  could  have  legitimated 
her.  It  was  held  that  the  daughter's  status  was  to  be  deter- 
mined by  the  law  of  California,  her  father's  domicil,  that  she 
was  legitimated,  and  entitled  to  inherit  her  father's  estate.  In 
this  case,  the  status  was  purely  a  beneficial  one  so  far  as  the 
daughter  was  concerned,  and  even  if  the  case  had  come  before 
the  English  courts  instead  of  those  of  California,  it  is  believed 
the  result  would  have  been  the  same.  But  if  the  question  had 
been,  not  as  to  the  right  of  the  daughter  to  inherit  from  the 
father,  but  the  right  of  the  father  (domiciled  in  California)  to 
inherit  the  property  of  the  daughter  (domiciled  in  England), 
and  the  case  had  arisen  in  England,  the  English  courts  might 
well  refuse  to  enforce  the  law  of  the  father's  domicil,  when  to 
do  so  would  no  longer  benefit  the  bastard  and  might  deprive  her 
English  relatives  of  the  inheritance.  This  might  be  a  case  for 
the  operation  of  one  of  the  exceptions  to  the  enforcement  of  the 
proper  law,  and  for  the  substitution  of  the  lex  fori. 

«  45  Ala.  410. 

6  96  Cal.  532,  31  Pac.  915,  19  L.  R.  A.  40. 


§  101  ADOPTION.  221 

If,  however,  the  bastard's  domicil  is  in  fact  the  same  as  the 
father's  at  the  time  of  the  legitimating  act,  there  is  no  doubt 
that  the  child,  though  an  adult,  becomes  legitimated.* 

§  101.  Legal  Status  of  Adoption.  — Thestatus  of  ad<;>jtir>n, 
like  that  of  subsequent-logitimation  io  unknown  to  tho-camnion 
law.JhouE^h  familiar  in  the  jurisprudence  of  the  Roman  law, 
from  which  it  has  been  introduced  by  statute  into  maTiyio#-4he 
States  of  the  Union.  Like  subsequent  legitimation  also,  adop- 
tion presents  the  peculiarity  of  a  plural  status.  Indeed  this 
may  be  more  pronounced  in  the  case  of  adoption  than  in  that  of 
legitimation,  since  the  relations  of  more  persons  are  involved 
therein.  This  plurality  of  the  status  may  cause  very  serious 
embarrassment  in  the  solution  of  some  of  the  questions  which 
present  themselves  under  this  head. 

The  result  of  adoption  under  the  statutes  is  usually  that  the 
adopted  child  ceases  in  law  to  be  the  child  of  its  natural  parents, 
so  far  as  their  rights  and  obligations  are  concerned,  and  becomes 
the  child  of  the  adopting  parents  to  all  intents  and  purposes, 
with  the  rights  and  obligations  incident  thereto.  The  statutes 
usually  provide  that  the  adoption  shall  originate  in  a  judicial 
proceeding  instituted  in  the  court  of  the  child's  residence,  upon 
petition  filed  by  the  party  desiring  to  adopt  it,  and  that  the 
natural  parent  or  the  guardian  shall  be  a  party  to  the  proceeding.^ 

Thus  it  will  be  seen  that  adoption  involves  an  alteration, 
not  only  in  the  status  of  the  person  adopted  and  in  that  of  the 
adopting  parent  or  parents,  but  in  that  of  the  natural  parents 
also.  Here  are,  or  may  be,  three  sets  of  domicils,  whose  laws 
may  each  claim  some  share  in  regulating  the  status  of  the 
parties  concerned.  But  practically  these  will  generally  be  re- 
duced to  two,  since  the  person  adopted  is  usually  an  infant,  and 
hence  will  have  the  domicil  of  its  parents.* 

e  Ives  V.  McNicoll,  59  Ohio  St.  402,  43  L.  R.  A.  772;  Scott  v.  Key,  11 
La.  Ann.  232. 

1  For  examples  of  such  statutes,  see  Van  Matre  v.  Sankey,  148  III.  356,  36 
N.  E.  628 ;  Foster  v.  Waterman,  124  Mass.  592 ;  Furgeson  v.  Jones,  17  Or. 
204,  11  Am.  St.  Rep.  808. 

*  At  the  same  time  it  is  conceivable  that  he  may  be  an  adult,  with  a  domi- 
cil of  his  own  apart  from  his  parents.     But  in  such  case  the  domicil  of  the 


222  ADOPTION.  §  101 

If  the  adopting  parents,  the  natural  parents  (if  any),  and  the 
child  are  all  domiciled  in  the  State  where  the  adoption  pro- 
ceedings take  place,  and  the  status  is  there  validly  created,  no 
doubt  will  arise.  The  status  is  a  permanent  and  universal  one, 
and  once  created  will  continue  and  will  be  recognized  as  exist- 
ing everywhere,  until  dissolved  according  to  the  law  of  the 
parties'  domicil,  or  so  long  as  the  recognition  of  the  relation 
does  not  work  an  injustice  to  the  residents  of  the  State  where 
the  question  arises  (forum)  or  contravene  its  established  policy.' 

If  thr  drmrriril  nf  thr,  Hidnp^'Tig  p^r^nf  is  not  identical  with 
that  of  the  adopted  child,  it  is  believed  that  the  law  of  the 
child' s  domicil  will  determine  the  status,  if  the  adoption  takes 
place  there  (as  it  usually  will),  while  if  the  adoption  ahmilrl 
occur  in  the  domicil  of  the  adopting  poronf|  tho  low  nt-^Jiis 
do7rtieU-Jiu\l  govern.  The  case  is  analogous  to  that  of  divorce. 
In  both,  a  decree  of  court  is  required,  and,  upon  principles 
already  noticed  in  discussing  the  exterritorial  force  of  a  decree 
of  divorce,  a  court  has  no  jurisdiction  over  a  matter  of  status 
unless  one  of  the  parties  at  least  is  domiciled  in  its  territory. 
It  can  give  no  decree,  which  will  have  exterritorial  effect, 
touching  the  status  of  non-residents.  But  it  is  not  necessary 
that  both  parties  should  be  domiciled  there.* 

natural  parents  will  only  be  of  importance  when  some  question  of  their 
status,  rights,  or  duties  arises.  No  cases  of  the  kind  have  as  yet  been  passed 
upon.  All  the  decided  cases  relate  entirely  to  the  status  as  it  exists  between 
the  child  and  the  adopting  parent.  See  Furgeson  v.  Jones,  17  Or.  204,  11  Am. 
St.  Rep.  808. 

«  Ross  V.  Ross,  129  Mass.  243,  37  Am.  Rep.  321 ;  Melvin  v.  Martin,  18  E.  I. 
650,  30  Atl.  467  ;  Gray  v.  Holmes,  57  Kan.  217,  45  Pac.  596,  33  L.  R.  A. 
207;  Van  Matre  v.  Saukey,  148  111.  356,  36  N.  E.  628,  23  L.  R.  A.  665;  Kee- 
gan  V.  Geraghty,  101  111.  26.  See  Woodward  v.  Woodward,  87  Tenn.  644, 
11  S.  W.  892.  In  most  if  not  all  these  cases  there  were  statutes  in  the  State  of 
the  forum  permitting  adoption,  differing  only  in  detail  from  the  statutes  under 
which  the  adoption  actually  occurred. 

*  Ante  §§  88  et  seq.  In  Van  Matre  v.  Sankey,  148  111.  356,  36  N.  E. 
628,  23  L.  R.  A.  665,  the  adopting  parent  was  domiciled  in  California,  the 
adopted  child  in  Pennsylvania,  and  the  adoption  took  place  under  decree  of 
a  Pennsylvania  court,  in  accordance  with  Pennsylvania  law.  The  Illinois 
court  did  not  even  inquire  into  the  law  of  California  (the  adopter's  domicil) 
upon  the  subject  of  adoption,  but  looked  only  to  the  law  of  Pennsylvania. 


§  101  ADOPTION.  22a 

The  proper  law  to  determine  whether  a  particular  person  is 
the  legitimated  or  adopted  child  of  another  being  ascertained  in 
accordance  with  the  principles  discussed  in  this  and  the  preced- 
ing sections,  it  still  becomes  necessary  to  consider  the  effect  of 
the  legitimation  or  adoption  in  other  States.  In  general  the 
status  thus  created  under  the  proper  law  will  be  recognized 
everywhere,  unless  the  policy  of  the  forum  or  the  interests  of  its 
inhabitants  forbid  its  enforcement  and  demand  the  substitution 
of  the  lex  fori.  Instances  of  this  have  been  already  seen.  Thus, 
the  domicil  of  a  legitimated  or  adopted  infant  at  once  com- 
mences to  follow  the  domicil  of  the  father  or  adopting  parent,  as 
though  the  child  were  born  to  the  parent  in  wedlock.^  We 
have  also  seen  that  in  general  he  will  inherit  the  parent's  prop- 
erty, whether  personal  or  real,  regardless  of  the  law  of  its  situs 
touching  adoption.' 

In  Foster  v.  Watennan,  124  Mass.  592,  the  Massachusetts  court  held  that  an 
adopting  parent  there  domiciled  could  not  adopt  a  child  domiciled  in  New 
Hampshire  under  the  decree  of  court  and  the  statutes  of  the  latter  State,  so  as 
to  be  effective  in  Massachusetts.  But  this  case  turns  itither  upon  the  con- 
Btruction  of  the  New  Hampshire  statute,  which  was  held  to  be  applicable 
only  where  the  adopting  parent  as  well  as  the  adopted  child  were  domiciled  in 
New  Hampshire.  See  Furgeson  v.  Jones,  17  Or.  204,  11  Am.  St.  Rep.  808. 
6  Ante,  §§  43,  44.  •  Ante,  §  12. 


224  DUAL  NATURE   OF   FIDUCIARY  STATUS.         S  102 


CHAPTER  IX. 

STATUS  OF  FIDUCIARIES. 

§  102.  Dual  Nature  of  Fiduciary  Status.  —  Under  the  head 
of  **  Fiduciary  Status  "  will  be  grouped  the  principles  regulat- 
ing the  law  properly  applicable  to  fiduciaries,  not  only  with 
respect  to  their  appointment  and  qualification,  but  with  regard 
also  to  their  title  to  property,  their  rights,  powers,  and  liabili- 
ties, as  between  them  and  the  beneficiaries  on  the  one  hand, 
and  as  between  them  and  third  persons  on  the  other. 

It  must  be  carefully  observed  that  every  fiduciary  occupies 
two  relations  :  one  towards  the  beneficial  owner  of  the  trust  es- 
tate, and  quite  a  different  one  towards  third  persons  interested 
in  the  administration  of  the  trust  fund, —  for  example,  creditors. 

Thus  an  executor,  administrator,  guardian,  or  trustee  is  ap- 
pointed not  only  for  the  benefit  of  his  legatee,  distributee,  ward, 
or  cestui  que  trust,  but  also  in  order  to  manage  and  control  the 
property  committed  to  him,  to  collect  and  pay  debts,  to  prose- 
cute and  defend  suits,  n  sell  and  invest  property,  etc.  Third 
persons,  as  well  as  the  bei.  ficiaries.,  may  be  interested  in  the 
trust.  And  these  creditors,  debtors,  or  other  third  persons 
may  be  citizens  of  other  States  than  that  wherein  the  fiduciary 
and  beneficiaries  reside. 

It  might  work  a  serious  injury  to  the  citizens  of  the  forum 
if  a  foreign  fiduciary  were  allowed  to  administer  upon  property 
there  situated  except  in  accordance  with  its  own  laws  (lex  fori 
et  situs).  The  fact  that  the  fiduciary  is  a  resident  of,  and  ap- 
pointed in,  another  State,  and  that  the  beneficiaries  also  reside 
abroad,  is  immaterial.  No  State  can  be  expected  to  permit  prop- 
erty within  its  borders  to  be  taken  away,  sold,  or  dealt  with  in 
any  manner  by  a  fiduciary,  a  mere  quasi-legal  official  appointed 
in  another  State  and  subject  to  other  laws,  when  to  do  so  might 
jeopardize  the  interests  of  some  of  her  own  citizens  who  might 


§  103         DUAL  NATURE  OF   FIDUCIARY   STATUS.  225 

justly  claim  that  the  property  should  be  administered  by  theit 
own  law,  the  law  of  the  forum  and  situs  of  the  property. 

Upon  these  principles  it  ia  now  universally  admitted  that,  in 
the  absence  of  statute,  in  any  case  in  which  third  persons  are 
interested,  the  status  of  the  foreign  fiduciary  is  only  local  and 
temporary.  He  must  in  general  be  reappointed  and  must  qualify 
in  every  State  wherein  he  desires  to  administer  the  property  or 
rights  of  action  committed  to  his  charge.  Third  persons  are 
entitled  to  and  may  demand  all  the  security  and  protection  af- 
forded by  the  laws  of  the  State  where  the  property  is  situated. 
The  general  rule  in  thrge  emr^ii  in  tJiat^the  law  of  the  forum  and 
situs  of  the  property  will  rcgulAle  the  appuiutmcnt,  qualifica- 
tion,  rights,  title,  and  liabi^^^^'"  '  "'^  ^^^''  fi>T'>i''<-j'y^  «  '  f^r  w      ^n- 

But  so  far  as  the  relations  between  the  fi.duciary  and  the  bene- 
ficiaries of  the  trust  are  concerned  (third  persons  not  being 
interested),  even  when  the  question  arises  in  third  States,  the 
law  of  the  domicil  of  the  owner  or  beneficiary  (the  legal  situs  of 
the  owner's  person  and  personal  property)  will  control,  both  in 
respect  to  personal  rights  '  and  rights  relating  to  the  personal 
property.* 

Thus  it  will  brjirrri  thttt  frith  ^f^prrt  tf>  f]^nr>in»'ioo  jtha  gen- 
eral rulfijsto  apply  the   "  proper  litw^^s  bfttwaftn  fTi^^^rlnpiary 

and  the  beneHciary,  whllti,  as  between  the  fiduciary  and  third 
parties,  theTei  Wi  iy  aubsLiLuted  for  the  piupcr  lurWr 

§  103.  nitistraiiOlm  ■■  ■  Vailous  Classes  of  Fiduciaries.  — 
The  general  principles  noticed  in  the  preceding  section  may  be 
better  understood  with  the  aid  of  one  or  two  examples. 

1  Burbank  v.  Payne,  17  La.  Ann.  15,  87  Am.  Dec.  513  ;  Speed  v.  May,  17 
Penn.  St.  91,  94,  55  Am.  Dec.  540;  Dawes  v.  Head,  3  Pick.  (Mass.)  128, 
145  ;  Fay  v.  Haven,  3  Met.  (Mass.)  109 ;  Dial  v.  Gary,  14  S.  C.  573,  37  Am, 
Rep.  737,  738-739 ;  Townsend  v.  Kendall,  4  Minn.  412,  77  Am.  Dec.  534  ; 
Mayo  V.  Equitable,  etc.  Society,  71  Miss.  590,  1 5  So.  791 ;  Smith  v.  Bank, 
5  Pet.  518,  525 ;  Vaughn  v.  Northup,  15  Pet.  1  ;  McLean  v.  Meek,  18  How. 
16,  18  ;  Mackey  v.  Coxe,  18  How.  100,  104  ;  Wilkins  v.  Ellett,  9  Wall.  740, 
742. 

'  See  Townsend  v.  Kendall,  4  Minn.  412,  77  Am.  Dec.  534. 

*  Mayo  V.  Equitable,  etc.  Society,  71  Miss.  590,  15  So.  791 ;  Lamar  » 
Micou,  112  U.  3.  452. 

16 


226  DUAL   NATURE  OP  FIDUCIARY   STATUS.  §  103 

Let  us  suppose  a  man  to  die,  leaving  personalty  situated  in 
several  States.  By  his  will  he  leaves  his  property  to  his  chil- 
dren and  appoints  an  executor.  The  appointment  of  the  execu- 
tor is  not  solely  for  the  purpose  of  preserving  the  estate  for  the 
legatees  and  distributing  it  among  them,  but  also  to  pay  and  col- 
lect debts,  etc.  A  relation  is  established  between  the  legatees  and 
executor,  and  also  a  relation  between  the  executor  and  the  cred- 
itors, debtors,  and  claimants  of  the  estate.  These  creditors,  debt- 
ors, or  claimants  may  reside,  not  only  in  the  State  where  the 
owner  of  the  property  (the  testator)  was  domiciled,  but  in  other 
States  as  well,  including  those  where  the  personalty  of  the  dece- 
dent is  situated. 

When  the  executor  comes  into  those  latter  States  to  obtain 
possession  of  and  administer  the  property  there  situated,  those 
States  will  not  usually  permit  him  to  act  merely  b}--  virtue  of 
the  privileges  accorded  him  by  the  law  of  the  testator's  domicil. 
The  creditors,  debtors,  and  claimants  of  the  estate,  if  any,  who 
are  residents  of  those  States,  are  entitled  to  demand  that  every 
precaution  required  by  their  law  to  protect  their  interests  shall 
be  taken,  regardless  of  the  law  of  the  testator's  domicil.^  They 
have  the  right  to  demand  that  the  rules  of  the  situs  and  forum 
shall  be  followed,  touching  the  qualification  of  the  executor, 
the  security  to  be  given,  the  time  within  which  claims  may  be 
filed,  etc.  Hence  the  executor  will  be  required  to  show  his 
authority  by  proving  the  will  again  by  means  of  a  certified  copy 
of  the  domiciliary  probate :  he  will  be  called  upon  to  qualify  and 
to  give  security  in  accordance  with  the  law  of  the  situs  and 
forum;  and  until  he  has  taken  all  the  steps  required  of  home 
executors,  he  will  not  generally  be  permitted  to  assume  control 
of  the  property  there  situated.  The  j;eneral  principle  of  law 
that  the  legal  situs  of  personalty  is  at  the  domicil  of~~the  owner 
and  is  sxtfajgeno  "itFTaw  has  uu  application  here~rf6r,  as  has 


1  Though  the  primary  object  of  the  substitution  of  the  lex  fori  in  these 
cases  is  to  protect  citizens  of  the  forum,  yet  it  is  conceded  that  a  decedent's 
funds  in  any  State  are  liable  to  all  creditors  who  may  there  apply  for  settle- 
ment, regardless  of  citizenship  or  domicil.  De  Sobry  v.  De  Laistre,  2  Har.  & 
J.  (Md.)  191,  3  Am.  Dec.  535,  536  ;  Goodall  v.  Marshall,  11 N.  H.  88,  35  Am. 
Dec.  472,  477-479,  and  note. 


§  103  DUAL  NATURE  OF   FIDUCIARY   STATUS.  227 

Koon ,  oTiAwn ,  flia  7fignJ^  sJtus  of  persopalty  yields  to  the  dctuai 
situs,,.wherever  any  of  the  great  exceptions  to  the  enJorcement 
of  the  jproper  law  cOme  ilito  play."  Mere  the  substitution  Sf 
the  lex  fori  anfl  IftY  situs  tor  the  le^c  <l(tihl<'.ilii  of  the  besUtOTls 


justified  as  a  protection  to  the  interests  of  the  peopTe^~Xhe 
forum.* 

If  it  turns  ont  that  nft^^  ^^^  f^^^^  ?^ft  n"  21^^11^^°  or  other 
third  persons  whoare  interested  in  the  administration,  the  rea- 
8on  for  the  substitution  of  the  lex  fori  ceases.  The  foreign  execu- 
tor will  then  be  allowe3~to  assume  full  controT'gf-tho  property: 
the  law  of  the  forum  and  situs  ceases  to  operate  upon  it,  "and  it 
becomes  subjeciLto_the  lex  domicilii  of  the  testator!  H  none  of 
the  legatees  are  citizens  of  the  forum,  it  wiTTuSlially  be  sent  on 
to  the  domicil  of  the  testator,  to  be  there  administered  and 
distributed  by  the  executor,  under  the  direction  of  the  domi- 
ciliary courts  and  in  accordance  with  the  lex  domicilii.*  If 
there  are  citizens  of  the  situs  and  forum  who  are  legatees  (there 
being  no  creditors)  the  property  will  still  be  subject,  in  its  dis- 
tribution among  the  legatees,  to  the  lex  domicilii  of  the  testator, 
though  it  need  not  necessarily  be  sent  there  for  distribution.* 

What  has  been  said  above  of  executors  may  be  repeated  in 
almost  the  same  language  with  respect  to  administrators,  as  will 
more  fully  appear  hereafter. 

Another  instance  of  this  double  relationship  of  fiduciaries  is 
to  be  found  in  the  relation  of  Guardian  and  Ward,  though  not 

2  Ante,  §  14  ;  post,  §§  120,  121  et  seq. 

»  See  Atchison  v.  Lindsey,  6  B.  Mon.  (Ky.)  86,  43  Am.  Dec.  153;  Dawes 
».  Head,  3  Pick.  (Mass.)  128  ;  Fay  v.  Haven,  3  Met.  (Mass.)  109,  114  ;  Dial 
r.  Gary,  14  S.  C.  573,  37  Am.  Rep.  737  ;  Vroom  v.  Van  Home,  10  Pai.  Ch. 
(N.  Y.)  549,  555;  Petersen  v.  Chemical  Bank,  32  N.  Y.  21,  43,  88  Am.  Dec. 
298  ;  Welles'  Estate,  161  Penn.  St.  218,  28  Atl.  1116,  1117  ;  Smith  v.  Bank, 
5  Pet.  518  ;  Wilkins  v.  EUett,  9  "Wall.  740,  742 ;  s.  c;  108  U.  S.  256,  258. 
The  same  principle  has  in  some  cases  even  been  extended  to  resident  legatees 
where  the  assets  are  more  than  suflScient  to  pay  all  the  creditors  of  the  estate, 
foreign  and  domestic.  See  Graveley  v.  Graveley,  25  S.  C.  1,  60  Am.  Rep. 
478. 

*  Post,  §  113. 

6  Harvey  v.  Richards,  1  Mason,  C.  C.  381  ;  Graveley  v.  Graveley,  25  S.  0. 1, 
60  Am.  Rep.  478.     See  post,  §  113. 


228  EXECUTORS    AND   ADMINISTRATORS.  §  104 

to  so  marked  an  extent."  This  double  relationship  of  guardians, 
and  indeed  of  fiduciaries  generally,  requires  that  they  too  should 
be  governed  as  to  creditors  and  other  third  persons  by  the  lex 
fori  et  situs. 

The  several  fiduciaries  whose  status,  in  respect  to  the  crea- 
tion, incidents,  and  termination  thereof,  we  will  now  consider, 
are:  (1)  Executors  and  Administrators;  (2)  Guardians;  and 
(3)  Receivers. 

§  104.  Executors  and  Administrators  —  Outline  of  Dis- 
cussion. —  A  primary  distinction  is  to  be  noted  between  the 
administration  of  a  decedent's  estate  and  the  distribution  thereof, 
the  effect  of  which  has  already  been  alluded  to  in  the  preceding 
section.  The  administration  of  a  decedent's  estate  involves  the 
dealings  and  relations  of  the  executor  or  administrator  with 
third  persuos ;  while  the  distribution  of  the  estate  involves 
their  relations  and  dealings  with  the  beneficiaries^  the  legatees 
or  distributees. 

It  will  be  rememberedtjiat-thia  cntniln  n  cnrrrfUKrndirig  dis- 
tinction  as  to^  the  law  properly  applicable.  SolQjig-fts-the  in- 
fprpgfs^  gna.rf]pfl  a.rp  t.hnaft  nnly  of  itxe  ob^ectsof  the  decedent's 
bounty  (hi^  grantftftS;  i\°  it  wftr^']!,  the  lex  domicilii  of  the~de- 
cedent  will  in  general  determine  all  their  rights,  fio" matter 
where  the  beneficiaries  or~lB3Ticia.ri«s  reside,  or  the  question 
arises.* 

THrE  if  it  ia  a  matter  of  administration,  the  rights  of  third 
parties  intervening^^jli  hpff^^mftsi  a  najjejor  the  substitution  of  the 
lex  fori  for  the  proper  larW-(the  lex  domicilii  of  the  decedent). 
And  since  administration  proceedings  are  to  a  certain  extent  in 
the  nature  of  proceedings  in  rem,^  the  courts  willnoF~generally 
itsH^imft  to  administer  upon  property  not  wtttrinHfebeir  jurisdic- 
tion.*     Hence  it  comes  about  that  ttie  forum  and  the  situs  of 

•  See  post,  §§  114  et  aeq. 

1  See  post,  §§  139  et  seq. 

»  See  Reynolds  V.  Stockton,  140  U.  S.  255,  272;  Rockwell  v.  Bradshaw, 
67  Conn.  9,  34  Atl.  758,  761. 

»  Stacy  V.  Thrasher,  6  How.  44,  58  ;  Hooker  v.  Olmstead,  6  Pick.  (Mass.) 
481.  Or  if  it  ia  within  the  jurisdiction  of  another  court.  See  Byers  w.  Mc- 
Auley,  149  U.  S.  608. 


§  105  QUALIFICATION  OF  BEPRESENTATIVES.  229 

the  property  administered  will  always  coincide,  and  the  lex  fori 
et  situs  becomes  the  law  by  which  the  administration  of  estates 
is  governed. 

We  shall  develop  this  topic  under  the  following  general 
heads :  (1)  The  law  controlling  the  creation  of  the  status  of 
executor  or  administrator;  (2)  The  law  controlling  the  incidents 
of  the  status ;  including  the  powers,  rights,  duties,  and  liabili- 
ties of  executors  and  administrators  in  general,  the  order  in 
which  the  decedent's  debts  are  to  be  paid,  the  order  in  which 
the  decedent's  property  is  to  be  subjected  to  the  payment  of  his 
debts,  and  (incidentally)  the  rights  of  creditors  against  the  real 
estate  of  the  decedent,  the  right  of  the  decedent's  heir  or  devisee 
to  claim  exoneration  out  of  the  decedent's  personal  estate,  and 
the  right  of  one  heir  or  devisee  paying  the  decedent's  debts  to 
claim  contribution  from  the  others ;  and  (3)  The  law  controlling 
the  termination  of  the  fiduciary  status  ;  including  the  settle- 
ment of  the  accounts,  the  distribution  of  the  residuum  after  the 
collection  and  satisfaction  of  all  claims,  and  the  rules  governing 
ancillary  administrations. 

§  105.  Appointment  and  Qualification  of  Administrators 
and  Executors.  —  An  administrator  of  a  decedent's  estate  ia  an 

officer  of    the   law.  appniTl^f'fi  by  fhr  nrilpr  nt   g.  ^nmpPj^^P^^^w^nl^rf^ 

in  a  proceeding  in  the  nature  of  a  proceeding  in  rem}  The 
jurisdiction  of  the  court  is  local,  extending  no  further  than  to 
embrace  the  property  within  the  limits  of  its  control.  For  this 
reason,  as  well  as  for  the  reasons  given  in  the  preceding  sec- 
tions, the  appointment  is  in  general  of  no  effect  outside  the 
jurisdiction  where  he  is  appointed;  and  if  the  personalty  of  the 
decedent  is  situated  in  several  States,  he  must  be  reappointed 
or  a  new  administrator  must  be  nominated  in  each  State  before 
the  property  there  situated  can  be  administered.' 

1  See  Reynolds  v.  Stockton,  140  U.  S.  255,  272  ;  Rockwell  ».  Bradshaw, 
67  Conn.  9,  34  Atl.  758,  761. 

2  Dial  V.  Gary,  14  S.  C.  573,  37  Am.  Rep.  737,  739 ;  Graveley  v.  Graveley, 
25  S.  C.  1,  60  Am.  Rep.  478,  482;  Stevens  v.  Gaylord,  11  Mass.  256,  262  ; 
Merrill  v.  Ins.  Co.,  103  Mass.  245,  248,  4  Am.  Rep.  548 ;  Campbell  v.  Tousey, 
7  Cow.  (N.  Y.)  64  ;  Shultz  v.  Pulver,  3  Pai.  Ch.  (N.  Y.)  182;  s.  c.  11  Wend. 
361  ;  Vroom  v.  Van  Home,  10  Pai.  Ch.  (N.  Y.)  549,  556,  42  Am.  Dec.  94 ; 


230  QUALIFICATION   OF   EEPRESENTATIVES.  §  105 

The  primary  nflminintrnitnr;  in  minh  i  ii  j  i'  lli  iiii  ajljwntofl 
by  the  rtoiirfg  nf  iho.  fJf.r>PflpTif*s  domicil^  and  to  him  will  ulti- 
mately  be  remitted  all  the  funds  of  the  decedent  in  other  States, 
after  administration  there  has  been  accomplished  and  the  "cfed- 
itors^there  have  been  satisfied.^  in  the  meantime,  however, 
these  ancillary  or~alts41iary  administrators  are  not  to  be  consid- 
ered as  identical  or  in  privity  with  the  domiciliary  administra- 
tor, but  as  independent  of  him.  Hence,  a  judgment  rendered 
against  an  administrator,  and  unsatisfied,  will  not  be  evidence 
of  the  claim  against  another  administrator  of  the  same  decedent 
appointed  in  another  State.*  But  if  a  judgment  is  rendered  hi 
favor  of  one  administrator,  it  will  bar  an  action  for  the  same 
claim  brought  by  another  administrator  of  the  decedent  in  an- 
other State,  at  least  if  the  debtor  is  a  citizen  of  the  latter 
State."* 

The  same  general  principles  apply  to  administrators  de  bonis 
non,  administrators  with  the  will  annexed,  curators,  etc.,  all 
of  whom  are  appointed  not  by  the  decedent,  but  by  the  State 
itself,  acting  through  its  courts.® 

So  also  the  qualification  of  an  administrator  must  take  place 
in  accordance  with  the  law  of  the  State  where  he  is  to  act,  and 
if  the  same  party  has  been  appointed  in  several  States,  he  must 
qualify  in  each  according  to  its  laws.  His  proper  qualification, 
by  taking  the  prescribed  oath  and  conforming  to  the  regulations 
touching  the  giving  of  bond  and  security,  is  a  very  important 
safeguard  afforded  by  the  law  to  the  creditors  of  the  decedent's 
estate  within  the  limits  of  each  State.  The  notoriety  afforded 
by  the  administrator's  appointment  and  qualification  in  each 

Parsons  v.  Lyman,  20  N.  Y.  103;  Smith  v.  Bank,  5  Pet.  518,  525  ;  Wilkins 
V.  Ellett,  9  Wall.  740,  742. 
8  Post,  §  113. 

*  Johnson  v.  Powers,  139  U.  S.  156,  159,  160 ;  McLean  v.  Meek,  18  How. 
16 ;  Stacy  v.  Thrasher,  6  How.  44 ;  Merrill  v.  Ins.  Co.,  103  Mass.  245,  249  ; 
Graveley  v.  Graveley,  25  S.  C.  1,  60  Am.  Rep.  478,  482.  As  to  executors,  s«e 
Hill  V.  Tucker,  13  How.  458  ;  post,  §  107. 

6  Stevens  v.  Gaylord,  11  Mass.  256,  265.  See  Talmage  v.  Chapel,  16 
Mass.  71. 

•  Harvey  v.  Richards,  1  Mason,  C.  C.  380 ;  Shannon  v.  White,  109  Maas. 
146  ;  Selectmen  of  Boston  v.  Boylston,  2  Mass.  384. 


§  105  QUALIFICATION   OF  REPRESENTATIVES.  231 

State  is  also  a  protection  to  third  parties  there.  For  these  and 
other  reasons  of  like  kind  it  is  now  the  established  rule  that 
an  administrator,  in  order  to  act  within  any  State,  must  qualify 
there,  though  he  has  already  qualified  elsewhere.'' 

With  respect  to  the  qualification  of  foreign  executors,  the 
same  principles  apply.  The  executor,  though  he  has  qualified 
in  the  State  of  the  testator's  last  domicil,  must  qualify  anew  in 
every  State  where  he  desires  to  act,  or  if  action  is  desired  in 
his  absence  an  administrator  with  the  will  annexed  must  be 
appointed  in  his  stead.  Here  also  each  State  will  insist  that 
the  safeguards  of  the  interests  of  its  own  citizens  shall  be 
observed. ' 

But  so  far  as  relates  to  the  (ipj^jnfmp.nf.  of  tbp.  p-^pr^ntnr,  \h 
differs  from  that  of  an  administrator  in  that  the  former  is  the 
act  of  thft  tftatainy  himself^  and  is  th^ref"^"  "^^"pft"dqnt  "f  j'ln's- 
dictioa^r  the  locality  of  the  property,  while  the  latter  is  the  act 
of  the  court  of  prnba.tP!,  anri  js  Qot  generally  recu^ul^itjd  otrtytde 
of  that  court^irurjadiction.'  Important  consequences  may  flow 
from  this  distinction  under  certain  circumstances.  Thus,  it  has 
been  held  in  some  States  that  a  foreign  executor,  in  the  absence 
of  statute,  without  a  new  qualification,  may  deal  with  assets  of 
the  testator  in  any  State  as  if  he  were  a  domestic  executor,  save 
only  that  he  must  qualify  before  he  can  sue  or  be  sued  as  such, 
while  an  administrator  appointed  in  one  State  can  do  no  act  in 

">  See  Flannery's  Will,  24Penn.  St.  502  ;  Dawes  v.  Head,  3  Pick.  (Mass.) 
128,  144;  Ex  parte  Picquet,  5  Pick.  (Mass.)  65  ;  Fayw.  Haven,  3  Met.  (Mass.) 
109,  116 ;  Sheldon  v.  Rice,  30  Mich.  296,  18  Am.  Rep.  136  ;  Dial  v.  Gary,  14 
S.  C.  573,  37  Am.  Rep.  737;  Morrell  v.  Dickey,  1  Johns.  Ch.  (N,  Y.)  153  ; 
Petersen  i'.  Chemical  Bank,  32  N.  Y.  21,  42-43,  88  Am.  Dec.  298  ;  Vaughn 
V.  Northup,  15  Pet.  1 ;  Johnson  v.  Powers,  139  U.  S.  156. 

8  Armstrong  v.  Lear,  12  Wheat.  169  ;  Dial  v.  Gary,  14  S.  C.  573,  37  Am. 
Rep.  737,  739  ;  Campbell  v.  Tousey,  7  Cow.  (N.  Y.)  64  ;  Vroom  v.  Van  Home, 
10  Pai.  Ch.  (N.  Y.)  549,  555,  42  Am.  Dec.  94;  Petersen  v.  Chemical  Bank, 
32  N.  Y.  21,  45,  88  Am.  Dec.  298;  Fay  v.  Haven,  3  Met.  (Mass.)  109  ; 
Richards  v.  Dutch,  8  Mass.  506  ;  Jennison  v.  Hapgood,  10  Pick.  (Mass.)  77, 
19  Am.  Dec.  258  ;   Welch  v.  Adams,  152  Mass.  74,  25  N.  E.  34. 

»  Vroom  V.  Van  Home,  10  Pai.  Ch.  (N.  Y.)  549,  555-556,  42  Am.  Dec. 
94  ;  Dial  «.  Gary,  14  S.  C.  573,  37  Am.  Rep.  737,  739 ;  Hill  v.  Tucker,  13 
How.  458. 


232  FOREIGN  ADMINISTRATORS.  §  106 

another  until  he  has  been  reappointed  there.^®  But  other  courts 
make  no  distinction  between  foreign  executors  and  administra- 
tors in  this  respect,  requiring  new  letters  of  administration  in 
each  State  before  any  act  can  be  done  there.  The  latter  would 
seem  to  be  the  sounder  view.^^ 

§  106.  Incidents  of  Status  of  Personal  Representatives  — 
Their  Rights  and  Liabilities  in  general.  — As  a  general  rule, 
the  powers  and  rights  of  an  executor  or  administrator,  as  well 
as  his  liabilities  and  duties,  are  confined  to  the  State  where  he 
is  appointed  and  qualifies  as  such,  and  do  not  extend  to  other 
States  or  countries  where  assets  of  the  decedent  are  situated, 
unless  he  also  qualifies  there  according  to  the  law  of  the  latter 
place  (lex  situs  et  fori).^ 

Thus  an  administrator,  appointed  in  one  State,  cannot  sell  or 
possess  himself  by  legal  process  of  any  assets  of  his  intestate  in 
another  State,  without  appointment  there  also.  Any  such  action 
on  his  part  is  tortious,  and  he  may  be  held  responsible  therefor 
in  the  latter  State  as  executor  de  son  tort  or  otherwise."  Nor 
can  he  convey  a  valid  title  to  chattels  situated  in  a  State  where 

10  See  Harper  v.  Butler,  2  Pet.  239  ;  Rand  v.  Hubbard,  4  Met.  (Mass.)  252  ; 
Merrill  v.  Ins.  Co.,  103  Mass.  245,  248 ;  Vroom  v.  Van  Home,  10  Pai.  Ch. 
(N.  Y.)  549,  555,  42  Am.  Dec.  9  ;  Campbell  v.  Tousey,  7  Cow.  (N.  Y.)  64  ; 
Vermilya  v.  Beatty,  6  Barb.  (N.  Y.)  429 ;  Petersen  v.  Chemical  Bank,  32 
N.  Y.  21,  43,  88  Am.  Dec.  298. 

"  See  Graveley  v.  Graveley,  25  S.  C.  1,  60  Am.  Rep.  478,  482  ;  Glenn  v. 
Smith,  2  Gill  &  J.  (Md.)  493,  20  Am.  Dec.  452,  455 ;  Packwood's  Succession, 
9  Rob.  (La.)  438,  41  Am.  Dec.  341,  344.  See  Dial  v.  Gary,  14  S.  C.  573,  37 
Am.  Rep.  737,  739  ;  post,  §  124. 

1  Vaughn  v.  Northup,  15  Pet.  1 ;  Dial  v.  Gary,  14  S.  C.  573,  37  Am.  Rep. 
737  ;  Gi-aveley  v.  Graveley,  25  S.  C.  1,  60  Am.  Rep.  478,  482  ;  Cutter  v. 
Davenport,  1  Pick.  (Mass.)  81  ;  Sheldon  v.  Rice,  30  Mich.  296,  18  Am.  Rep. 
136;  Flannery's  Will,  24  Penn.  St.  502;  Morrell  v.  Dickey,  1  Johns.  Ch. 
(N.  Y.)  153  ;  Packwood's  Succession,  9  Rob.  (La.)  438,  41  Am.  Dec.  341,  344. 
According  to  the  better  opinion,  the  distinction  between  the  modes  of  appoint- 
ment of  executor  and  administrator  does  not  create  any  difference  in  the  law 
controlling  their  rights  and  obligations  in  the  administration  of  the  estate. 
See  ante,  §  105. 

2  Glenn  v.  Smith,  2  Gill  &  J.  (Md.)  493,  20  Am.  Dec.  452,  455 ;  Camp- 
bell r.  Tousey,  7  Cow.  (N.  Y.)  64.     See  Andrews  r.  Avory,  14  Gratt.  (Va.) 


§  106  FOBBIGN  ADMINISTBATOBS.  233 

he  has  not  been  appointed  administrator;  *  nor  (it  is  said)  caa 
he  validly  release  a  foreign  debtor  of  his  decedent.* 

But  with  respect  to  the  assets  situated,  or  even  transiently 
found,  in  the  State  of  his  appointment,  he  can  convey  a  title 
to  them,  which  will  be  upheld  everywhere.' 

K  the  goods  are  situated  in  the  State  of  appointment  and  are 
afterwards  removed  by  the  administrator  to  another  State,  it  is 
said  that  he  may  administer  them,  and  be  held  liable  to  cred- 
itors and  others,  in  the  latter  State  without  a  new  appointment 
there.'  But  if  he  should  thus  be  held  responsible,  it  seems  that 
the  nature  and  extent  of  his  liability  would  depend  upon  the 
laws  of  the  State  or  country  from  which  he  derived  his  authority 
to  administer  the  decedent's  assets,  not  upon  the  law  of  the 
State  whither  he  has  removed.' 

If  an  executor  or  administrator,  without  a  new  appointment, 
goes  into  a  foreign  State,  collecting  assets  there  and  bringing 
them  back  into  the  State  of  his  appointment,  they  are  to  be 
deemed  home  assets,  and  are  to  be  administered  and  accounted 
for  as  such,  at  least  if  there  are  no  creditors  or  claimants  resi- 
dent in  the  State  from  which  the  assets  have  been  withdrawn.' 

»  Glenn  v.  Smith,  2  Gill  &  J.  (Md.)  493,  20  Am.  Dec.  452,  455;  Dial  v. 
Gary,  14  S.  0.  573,  37  Am.  Rep.  737 ;  Burbank  v.  Payne,  17  La.  Ann.  15,  87 
Am.  Dec.  513,  515-516.    See  Russell  v.  Hooker,  67  Conn.  24,  34  Atl.  711,  712. 

*  Vaughn  v.  Barret,  5  Vt.  333,  26  Am.  Dec.  306.  This  proposition  is  open 
to  doubt.  The  case  is  closely  analogous  to  that  of  a  yoluntary  payment  by  a 
debtor  to  a  foreign  representative,  which  it  is  generallj'  conceded  is  a  satisfaction 
of  the  debt.    Post,  §  109.    See  also  note  to  Vaughn  v.  Barret,  26  Am.  Dec.  306. 

s  Petersen  v.  Chemical  Bank,  32  N.  Y.  21,  43,  88  Am.  Dec.  298 ;  Dial 
V.  Gary,  14  S.  C.  573,  37  Am.  Rep.  737,  740  ;  Merrill  v.  Ins.  Co.,  103  Mass. 
245,  248. 

6  Gulick  V.  Gulick,  33  Barb.  (N.  Y.)  92  ;  McNamara  v.  Dwyer,  7  Pai.  Ch. 
(N.  Y.)  239,  32  Am.  Dec.  627;  Johnson  v.  Jackson,  56  Ga.  326,  21  Am.  Rep. 
285  ;  Embry  v.  Millar,  1  A.  K.  Marsh.  (Ky.)  300,  10  Am.  Dec.  732.  But 
see  Fay  v.  Haven,  3  Met.  (Mass.)  109,  115-116  ;  Jackson  v.  Johnson,  34  Ga. 
511,  89  Am.  Dec.  263,  268  ;  Hedenberg  v.  Hedenberg,  46  Conn.  30,  33  Am. 
Rep.  10 ;   Tunstall  v.  Pollard,  11  Leigh  (Va.),  1. 

7  McNamara  v.  Dwyer,  7  Pai.  Ch.  (N.  Y.)  239,  32  Am.  Dec.  627  ;  Evans 
V.  Tatem,  9  Serg.  &  R.  (Penn.)  252,  11  Am.  Dec.  717,  718. 

8  Evans  v.  Tatem,  9  Serg.  St.  R.  (Penn.)  252,  259,  11  Am.  Dec.  717 ;  An* 
drews  r.  Arory,  14  Gratt.  (Va.)  229. 


284  FOBEIGN  ADMINISTRATORS.  §  106 

It  may  be  added  that  it  is  the  duty  of  an  administrator,  who 
has  obtained  the  legal  control  of  notes  payable  to  his  intestate, 
to  take  the  necessary  steps  to  collect  them  of  the  debtor  under 
the  laws  of  the  debtor's  domicil  (that  is,  he  should  qualify  there 
himself  or  by  agent,  and  sue  the  debtor).  Otherwise  he  will 
be  held  answerable  as  for  assets  received  in  the  State  of  his 
appointment.* 

When  the  assets  consist  of  choses  in  action,  the  question  may 
arise  —  where  is  their  situs  ?  —  in  cases  where  the  creditor  and 
debtor  reside  in  different  States.  If  the  choses  in  action  should 
be  held  to  be  located  at  the  domicil  of  the  creditor,  upon  princi- 
ples above  adverted  to  the  administrator  of  the  creditor  there  ap- 
pointed may  pass  a  good  title  to  them  which  will  be  recognized 
everywhere.  On  the  other  hand,  if  the  situs  of  the  chose  in 
action  is  to  be  deemed  the  domicil  of  the  debtor,  the  creditor's 
administrator  appointed  in  the  creditor's  domicil  will  have  no 
power  to  convey  a  good  title,  without  having  been  appointed 
also  in  the  State  where  the  debt  is  located.  This  is  one  phase 
of  the  difficult  question  of  the  *'  situs  of  debt,"  and  will  be  con- 
sidered at  large  under  that  head  hereafter.^" 

The  executor  at  common  law  has  no  control,  as  such,  over  the 
decern t's  land  at  Eome  or  a15roa3[r3ln  tTiose  cases  where  he 
is  giv£n""TFe  power  to  sell^pr  controltEe  real  estate-,  h«  .acts 
as  trustee  under  the  will,  _not_  as  executor.  But  even  as  trustee 
appoijited"'and  qualified  in  one  State,  hp  yi\'\'\  nnf.  bp  pprmlt^*^*^ 
to  make  title  to  lands  situated,  in  another,  without  proof  of  the 


genuineness  and  ViilidiLy  uf  hly  a.Ulhoi'izatlonTn  the  latter  "State. 
He  must  probate  the  will  and  qualify  as  executor  under  the 
laws  of  the  situsoTTKe  land.^^ 

'  Independently  of  statute,  the  administrator,  being  the  ap- 
pointee of  the  court,  not  of  the  decedent,  has  no  authority  what- 

9  Shultz  V.  Pulver,  11  Wend.  (N.  Y.)  361. 

10  Petersen  v.  Chemical  Bank,  32  N.  Y.  21,  43,  88  Am.  pec.  298 ;  Dial  v. 
Gary,  14  S.  C.  573,  37  Am.  Rep.  737,  740.  See  Wilkins  v.  Ellett,  108  U.  S. 
256,  259.  The  first  of  these  cases  supports  the  first  view,  while  the  second 
advocates  the  other  view.  Probably  both  are  partly  right  and  partly  wrong. 
See  post,  §§  121,  124. 

"  Williams  v.  Mans,  6  Watta  (Penn.),  278;  Bingham's  Appeal,  64  Penn.  St 
d45  ;  Whart.  Confl.  L.  §  289. 


§  107      SUITS  BY  AND   AGAINST  REPRESENTATIVES.      235 

ever  to  deal  with  the  lands  of  his  intestate.  But  by  statute  iu 
some  States  such  an  authority  is  granted  him.  In  these  cases 
also  the  rule  is  strictly  applied  that  the  lex  situs  is  to  govern 
the  conveyance  of  the  land,  and  hence,  if  the  lex  situ^  does 
not  permit  the  administrator  to  deal  with  land,  a  deed  by  a 
foreign  administrator  will  not  be  given  effect  merely  because 
the  law  of  the  State  of  his  appointment  gives  him  control  over 
such  property."  On  the  other  hand,  if  the  lex  situs  permits  an 
administrator  to  control  realty,  it  means  an  administrator  ap- 
pointed by  the  courts  of  the  situs.  A  foreign  administrator 
can  convey  no  title  to  land.^^ 

When  a  foreign  executor  or  administrator  has  qualified  in 
another  State  than  that  of  his  original  appointment,  he  may  do 
all  acts  in  connection  with  the  property  there  situated  (and  none 
others)  which  are  permitted  to  home  executors  or  administra- 
tors under  the  lex  situs  et  fori.  Thus,  an  executor  of  one  dying 
domiciled  abroad,  who  has  duly  qualified  in  England,  has  been 
allowed  to  sell  leasehold  property  in  England,  though  not  per- 
mitted to  do  so  by  the  law  of  the  decedent's  last  domicil.** 

§  107.  Suits  by  and  against  Personal  Representatives.  — 
In  accordance  with  principles  already  adverted  to,  it  is  the 
general  doctrine  both  in  England  and  America  that  no  suit  can 
be  brought  by  or  against  an  executor  or  administrator  iu  his 
official  capacity  in  the  courts  of  any  country  save  that  from 
which  he  has  derived  an  authority  to  act  by  virtue  of  the 
letters  of  probate  or  of  administration  there  granted  him. 

Should  he  desire  to  institute  a  suit  in  a  foreign  country,  he 
must  first  obtain  new  letters  and  qualify  there  anew  in  accord- 
ance with  the  rules  there  prescribed.^     But  if  the  executor  or 

"  Watkins  v.  Holman,  16  Pet.  26. 

13  Cutter  V.  Davenport,  1  Pick.  (Mass.)  81,  11  Am.  Dec.  149  ;  Sheldon  v. 
Rice,  30  Mich.  296,  18  Am.  Rep.  136. 

"  Hood  V.  Bamngton,  L.  R.  6  Eq.  218. 

1  See  Kerr  v.  Moon,  9  Wheat.  565 ;  Vaughn  v.  Northup,  15  Pet.  1 ;  Smith  »• 
Bank,  5  Pet.  518,  527 ;  Johnson  v.  Powers,  139  U.  S.  156  ;  Cutter  v.  Daven- 
port, 1  Pick.  (Mass.)  81,  85-86,  11  Am.  Dec,  149  ;  Ex  parte  Picquet,  5  Pick. 
(Mass.)  65 ;  Goodwin  v.  Jones,  3  Mass.  514,  3  Am.  Dec.  173  ;  Merrill  v.  Ins. 
Co.,  103  Mass.  245,  248 ;  Judy  v.  Kelley,  11  fll.  211,  50  Am.  Dec.  455  ;  Mc- 
Namara  v.  Dwyer,  7  Pai.  Ch.  (N.  Y.)  239,  32  Am.  Dec.  627  ;  Vroom  v.  Van 


236      SUITS   BY   AND   AGAINST   REPRESENTATIVES.      §  107 

administrator  has  already  obtained  a  judgment  in  the  State  of 
his  appointment,  he  may  bring  an  action  upon  such  judgment 
in  another  State  without  a  new  qualification  there,  for  he  is 
then  responsible  to  the  estate  as  if  the  debt  had  been  collected, 
and  thus  the  judgment  becomes  his  own  property  upon  which  he 
may  sue  in  his  own  right.'' 

If  a  creditor  of  a  decedent  wishes  to  sue  in  a  foreign  State  to 
reach  assets  situated  there,  he  must  have  letters  of  administra- 
tion taken  out  there,  before  the  suit  can  be  instituted.  He  can- 
not in  general  sue  a  domestic  administrator  in  a  foreign  court  or 
a  foreign  administrator  in  a  domestic  court.' 

If  an  administrator,  appointed  in  one  State,  removes  with  the 
assets  of  the  estate  into  another  State,  the  courts  are  divided 
upon  the  question  whether  or  not  the  decedent's  creditors  may 
sue  the  administrator  in  the  latter  State  without  a  reappoint- 
ment, the  weight  of  authority  seeming  to  favor  the  right  of  the 
creditors  to  sue.*  But  if  the  administrator  should  only  come 
into  the  State  transiently  or  temporarily,  the  better  opinion 
would  seem  to  be  that  no  action  will  lie  against  him  there 
without   a  new  appointment.® 

It  should  be  observed  that  if  the  creditor  desires  to  subject  the 
land  of  the  decedent,  instead  of  suing  his  personal  representa- 

Home,  10  Pai.  Ch.  549,  42  Am.  Dec.  94  ;  Petersen  v.  Chemical  Bank,  32 
N.  Y.  21,  40-41,  88  Am.  Dec.  298. 

*  Talmage  v.  Chapel,  16  Mass.  71,  73  ;  Lewis  v.  Adams,  70  Cal.  403,  59 
Am.  Rep.  423.  See  Moore  i;.  Jordan,  36  Kan.  271,  59  Am.  Rep.  550  ;  Hall  v. 
Harrison,  21  Mo.  227,  64  Am.  Dec.  225,  228. 

«  Story,  Confl.  L.  §  513  ;  Vaughn  v.  Northup,  15  Pet.  1;  Reynolds  v. 
Stockton,  140  IT.  S.  255  ;  Vermilya  v.  Beatty,  6  Barb.  (N.  Y.)  429 ;  Richards 
V.  Dutch,  8  Mass.  506  ;  Hooker  v.  Olmstead,  6  Pick.  (Mass.)  481. 

*  Evans  v,  Tateni,  9  Serg.  &  R.  (Penn.)  252,  11  Am.  Dec.  717,  718  ;  Atch- 
ison V.  Lindsey,  6  B.  Mon.  (Ky.)  86,  43  Am.  Dec.  153 ;  Embry  v.  Millar, 
1  A.  K,  Marsh.  (Ky.)  300, 10  Am.  Dec.  732 ;  Johnson  v.  Jackson,  56  Ga.  326, 
21  Am.  Rep.  285;  Gulick  v.  Gulick,  33  Barb.  (N.  Y.)  92;  McNamara  ». 
Dwyer,  7  Pai.  Ch.  (N.  Y.)  239,  32  Am.  Dec.  627.  But  see  Fay  v.  Haven, 
3  Met.  (Mass.)  109,  115-116  ;  Hedenberg  v.  Hedenberg,  46  Conn.  30,33  Am. 
Rep.  10 ;  Jackson  v.  Johnson,  34  Ga.  511,  89  Am.  Dec.  263,  268. 

6  Evans  v.  Tatem,  9  Serg.  &  R.  (Penn.)  252,  11  Am.  Dec.  717,  719.  Sea 
Jackson  v.  Johnson,  34  Ga.  511,  89  Am.  Dec.  263  ;  Johnson  v.  Jackson,  56 
6a.  326.  21  Am.  Rep.  285. 


§  107      SUITS   BY  AND   AGAINST  REPRESENTATIVES.      231 

tive,  his  rights  against  the  real  estate  are,  in  accordance  with 
the  general  rule,  to  be  determined  by  the  lex  situs  of  the 
land.« 

If    there    are   two   or   more   administrators   of   a   decedent, 
appointeoTn'^lSerent  States,  there  is  no  privity  between  them, 
and  hence  no  action  will  lie  against  one  of  them^  upon  a  judg-    ^ 
mentoBtamea  against  another  in  the  State  of  his  appointment,    ^^"^V 
at  least  so  far  as  concerns  assets  received  by  the  former  in  thit      ""^^^ 
course  of  his  own  administration  and  not  remitted  to  him  by 
the   adea4»istrator~against   whom   the  judgment  is   obtained.' 
Upon  the  same  principle,  a  judgment  against  an  administrator 
of  the  deceased  in  one  State  will  not  be  received  in  another  in  a 
suit  brought  by  the  same  plaintiff  against  third  persons,  citi- 
zens of  the  latter  State,  having  assets  of  the  deceased,  real  or 
personal,  in  their  possession.' 

But  __with   respect   to  executors  the  rule  is    different.     Th^ 
interest  of  an  administrator  inhis  intestate's  estate  is  only  that 
whip.h~Thp!  law  of  the  Slate  u£  hla  appointment  authorizes,  while 
the  interest  of  an  executor  in  the  estate  Of  his  te'statpr  if?  thnt    ^. 
which  the  testator  gives  iiim.     Hence  where  there  are  several         >v 
executors,    though    citizensof^    and    qualifying   in,    different     ^ 
States,  they  are  m  privity  aa  to  the  debts  of  the  testat^  all 
bearing  towards   the   creditors   the  same   responsibility   as  if 
there    were  only  pne  exegnt/^r.     It  follows   therefore,   m   such 
case,  that  a  judgment  obtained  against  one  executor  in   one 
Stafe^iii  be  ev^^°^rP  'n  a  ouit  nrgftwtst-aQother  executor  of  the 
same  testator  in  another  State.® 

The  same  distinctions  run  through  the  cases  where  judg- 
ments are  obtained  by  administrators  and  executors  instead  of 
against  them.  An  administrator  cannot  sue  upon  a  judgment 
obtained  in  another  State  by  another  administrator  of  the  same 

6  See  Story,  Confl.  L.  §  489  h. 

7  Stacy  V.  Thrasher,  6  How.  44,  58  ;  McLean  v.  Meek,  18  How.  16,  18  ; 
Merrill  v.  Ins.  Co.,  103  Mass.  245,  249. 

8  Johnson  v.  Powers,  139  U.  S.  156,  160.  The  "  full  faith  and  credit "  clause 
of  the  federal  constitution  does  not  affect  these  principles,  as  between  the 
several  States  of  the  Union.     Stacy  v.  Thrasher,  6  How.  44,  f  9» 

»  Hill  V.  Tucker,  13  How.  458,  466,  467. 


238  SUIT   FOE   TORTIOUS   DEATH.  §  108 

intestate.^"      The   doctrine  is   believed   to   be   otherwise    with 
respect  to  executors. 

In  conclusion,  notwithstanding  the  general  rule  that  adminis< 
trators  and  executors  must  qualify  in  a  State  before  they  can 
sue  or  be  sued  there,  if  the  representative  misapplies  the 
funds  in  his  hands  in  a  State  where  he  has  not  qualified,  it 
must  be  observed  that  the  courts  of  equity  of  that  State  may 
assume  jurisdiction  of  a  suit  against  him  instituted  by  persons 
injured  by  the  misapplication.  In  such  cases  the  administra- 
tor or  executor  is  sued  in  his  personal,  not  his  representative, 
capacity,  and  the  suit  may  be  brought  in  any  court  having 
jurisdiction  of  his  person  and  of  his  fraud. ^^  But  the  nature 
and  extent  of  his  liability  is  still  Ho  be  fixed  by  the  law  of  the 
country  whence  he  derived  his  powers  and  authority.** 

§  108.  Right  of  Foreign  Representative  to  Sue  for  Dece- 
dent's Death  by  "Wrongful  Act.  —  The  reader  will  recall  the 
common  law  rule  that  "personal  actions  die  with  the  person." 
This  rule  has  been  altered  by  statute  in  England  and  in  most 
of  these  States,  so  as  to  permit  suit  to  be  instituted  for  the 
tortious  killing  of  a  person.  But  the  various  statutes  differ 
greatly  in  detail,  and  perhaps  upon  no  point  more  than  as  to 
who  shall  be  authorized  to  sue  in  such  cases.  Some  of  the 
statutes  provide  that  the  suit  shall  be  brought  by  the  personal 
representative  of  the  deceased  for  the  benefit  of  his  or  her  con- 
sort, children,  family,  or  next  of  kin  (exclusive  of  creditors), 
or  for  the  benefit  of  his  general  estate;  other  statutes  give  the 
right  to  sue  only  to  the  consort  or  children ;  others  to  the  next 
of  kin,  etc.  If  a  foreign  element  enters  into  the  transaction, 
such  as  that  the  death  occurs  in  one  State  while  the  action 
therefor  is  brought  in  another,  questions  of  considerable  diffi- 
culty sometimes  arise. 

The  main  discussion  of  this  subject,  a  fruitful  source  of  con- 
flicts of  laws  as  well  as  of  decisions,   will  be  postponed  to  a 

1"  Talmage  v.  Chapel,  16  Mass.  71,  73.    See  ante,  §  105. 

11  Montalvan  v.  Clover,  32  Barb.  (N.  Y.)  190,  192-193  ;  McNamara  v. 
Dwyer,  7  Pal.  Ch.  (N.  Y.)  239,  32  Am.  Dec.  627;  Leach  v.  Buckner,  19 
W.  Va.  36. 

M  McNamara  v.  Dwyer,  7  Pai.  Ch.  (N,  Y.)  239,  32  Am.  Dec.  627. 


§  108  SUIT  FOE   TORTIOUS   DEATH.  239 

later  period,  when  the  proper  law  governing  toHs  in  general 
will  be  examined.^  We  shall  here  consider  the  subject  only  as 
it  relates  to  the  right  of  the  personal  representative  to  bring 
such  an  action.  A  few  general  principles  however  must  be  pre- 
mised, for  the  substantiation  of  which  the  reader  is  referred  to 
the  subsequent  fuller  discussion  already  alluded  to. 

The  general  rule  is  that  the  law  of  the  place  where  the  tort 
resulting  in  death  is  committed  (lex  lnp-i~deHr:ri  >  will  determine 
whether  an  action  can  be  brought  therefor,  and  thg-^iacty^who 
is  to  bring  ^t^  ^^  wrII  ap  ^^^  ^^^ma  ^]t;|^m  which  the  suit  is  to 

be   brought,    the   limit   of   daipa^gftSj    ^^f^    ^^^'^()   pgrsnnT-frrr- wbnaft 

benefit  the  damages  are  to  be  given.  These  rights  are  the 
creatures  of  statute,  and  the  lex  T(3Tji>-delicti  must  be  strictly 
followed.  The  only  qualification  is  that  the  lex  delicti  will 
not  be  enforced  in  other  States  whose  laws  or  policy  would  be 
thereby  seriously  violated.' 

In  general,  therefore,  if  the  lex  loci  delicti  gives  the  adminis- 
trator or  executor  of  the  decedent  the  right  to  sue  in  such 
cases,  he  and  he  alone  will  have  the  right  to  sue  in  a  foreign 
State,  though  the  lex  fori  gives  that  right  to  some  person  other 
than  the  representative,  for  instance,  the  widow,  the  heirs,  etc' 
But  the  statutes  give  this  right  to  the  representative  in  his 
official  capacity,  not  as  a  personal  right.  It  is  only  as  the 
duly  qualified  executor  or  administrator  of  the  decedent  that 
he  can  sue  for  the  latter's  death.  This  much  is  generally  con- 
ceded, and  at  this  point  the  difficulties  of  the  subject  begin. 

As  we  have  seen,  in  order  that  the  authority  of  a  represent- 
ative may  be  recognized  in  other  States,  the  general  princi- 
ple is  that  he  must  qualify  in  each  State  where  he  desires  to 
act  or  to  sue;  and  on  the  other  hand,  if  he  has  qualified  in 
the  State  where  he  desires  to  act  or  to  sue,  he  need  not  qualify 
elsewhere.* 

But  this  principle  cannot  perhaps  be  accepted  so  freely  in 

1  See  post,  §§  200-202. 

2  Post,  §§  200-202. 

»  Usher  v.  R.  R.  Co.,  126  Penn.  St.  207, 17  Atl.  597  ;  Wooden  w.  B.  R.  Co, 
126  N.  Y.  10.     But  see  Stewart  v.  R.  R.  Co.,  168  U.  S.  445. 
*  Ante,  §§  105  et  seq. 


240  SUIT  FOR  TORTIOUS  DEATH.  §  108 

these  cases  of  death  by  wrongful  act.  Since  the  lex  delicti  de- 
termines who  is  to  sue,  and  since  we  have  supposed  that  law  to 
confer  the  right  upon  the  personal  representative  of  the  deceased, 
must  this  not  be  the  personal  representative  appointed  by  the 
lex  loci  delicti  itself  ?  Could  the  legislature  of  the  locus  de- 
licti have  had  in  mind  representatives  appointed  or  qualifying 
abroad  ?  If  not,  since  the  lex  delicti  is  to  be  strictly  followed, 
can  any  person  other  than  the  one  named  by  the  statute  of  tlie 
locus  delicti  sue  for  the  tort  committed  there,  even  though  the 
action  be  instituted  in  another  State  ?  Will  it  be  necessary  for 
the  representative,  having  qualified  in  the  locus  delicti,  to 
qualify  anew  in  the  State  of  the  forum  before  instituting  his 
action  ?  Or  is  it  needful  for  a  representative,  who  has  qualified 
in  the  forum,  to  have  also  qualified  in  the  locus  delicti  in  order 
that  he  may  sue  for  the  death  in  the  forum  ?  If  required  to 
qualify  in  the  State  of  the  forum,  can  he  qualify  there  if  there 
is  no  property  of  the  deceased  located  there  ?  Can  the  repre- 
sentative's right  to  sue  for  his  decedent's  death  be  regarded  as 
property  belonging  to  the  decedent  f 

These  are  some  of  the  questions  that  present  themselves  in  the 
solution  of  this  problem,  and  it  must  be  confessed  that  the  an- 
swers are  rather  dimly  shadowed  in  the  decisions  of  the  courts. 
The  adjudged  cases  present  many  conflicts  of  opinion  and  some- 
times confusion  of  thought,  so  that  it  is  hardly  possible  to 
formulate  a  general  rule  that  can  be  safely  followed  in  all 
cases. 

In  the  leading  case  of  Dennick  v.  R.  E,.  Co.^  the  question  was 
squarely  presented  whether  it  is  the  representative  of  the  locus 
delicti  or  the  representative  of  the  forum  who  should  bring  the 
action.  In  that  case,  the  death  by  wrongful  act  occurred  in 
New  Jersey,  and  the  action  therefor  was  instituted  in  New  York, 
by  a  New  York  administrator,  the  laws  of  both  States  conferring 
upon  the  personal  representative  the  right  to  sue.  It  was  con- 
tended that  the  New  Jersey  statute  included  only  personal  rep- 
resentatives there  appointed,  and  that  it  did  not  contemplate 
conferring  the  right  upon  foreign  representatives.     But  the  Su- 

*  103  U.  S.  11.  The  doctrine  of  this  case  has  since  been  followed  and  ex- 
tended in  Stewart  ».  R.  R.  Co.,  168  U.  S.  445. 


§  108  SUIT  FOR   TORTIOUS   DEATH.  241 

preme  Court  of  the  United  States  took  the  opposite  view  and 
sustained  the  right  of  the  New  York  administrator  to  sue  in  the 
courts  of  New  York.  This  case  (and  those  succeeding  it)  must 
probably  be  taken  as  settling  the  first  questions  above  mentioned, 
at  least  in  those  cases  where  both  the  lex  delicti  and  the  lex  fori 
give  the  representative  the  right  to  sue.* 

It  must  be  admitted  that  the  weight  of  recent  authority, 
whether  or'  not  it  can  be  entirely  justified  in  principle,  is  in 
favor  of  the  right  of  the  personal  representative  of  the  forum 
to  sue  (though  he  has  not  been  appointed  in  the  locus  delicti) 
wherever  the  lex  delicti  confers  that  right  upon  "  the  personal 
representative  "  of  the  deceased,  though  the  dead  man  has  no 
property  in  the  forum,  and  the  only  purpose  of  the  appointment 
of  the  administrator  is  to  sue  for  the  damages  for  his  death.'' 

The  fact  that  the  lex  fori  permits  the  administrator  to  sue  is  im- 
material, if  the  lex  loci  delicti  gives  the  power  to  another,  as  the 
widow,  children,  heirs,  etc.     The  last  named  persons  are  then 

*  And  the  later  case  of  Stewart  v.  R.  R.  Co.,  168  U.  S.  445,  carries  this 
doctrine  still  further,  laying  down  the  proposition  that  an  administrator  ap- 
pointed in  the  State  of  the  forum,  whose  law  confers  upon  him  the  right  to 
sue  for  the  death  of  his  decedent,  may  sue  there  for  such  death  occurring  in 
another  jurisdiction,  whose  law  does  not  give  the  right  to  sue  to  the  personal 
representative  of  the  deceased,  but  to  the  State  for  the  benefit  of  the  dead  man's 
family. 

7  See  Mo.  Pac.  R.  R.  Co.  v.  Lewis,  24  Neb.  848,  40  N.  W.  401 ;  Leonard  v. 
N»v.  Co.,  84  N.  Y.  48,  38  Am.  Rep.  491 ;  Bums  v.  R.  R.  Co.,  113  Ind.  169,  15 
N.  E.  230  ;  Morris  v.  R.  R.  Co.,  65  la.  727,  23  N.  W.  143  ;  Nelson  v.  R.  R. 
Co.,  88  Va.  971,  14  S.  E.  838.  In  Limekiller  r.  R.  R.  Co.,  33  Kan.  83,  52  Am. 
Rep.  523,  an  administrator  appointed  in  Missouri  sued  in  Kansas  for  the  death 
of  his  intestate  occurring  in  Kansas.  The  Kansas  statute  authorized  "  the 
personal  representative  "  to  sue  in  such  cases,  but  the  Missouri  statute  did  not. 
It  was  held  that  the  action  would  not  lie.  If  the  Missouri  statute  had  author- 
ized the  representative  to  sue,  it  would  still  be  exceedingly  doubtful  whether 
the  representative  of  the  locus  delicti  would  have  been  permitted  to  sue  in  the 
forum  without  a  new  appointment  there.  See  Perry  v.  R.  R.  Co.,  29  Kan.  420  ; 
Kansas  Pac.  R.  R.  Co.  v.  Cutter,  16  Kan.  568.  Some  of  the  earlier  cases  have 
refused  on  one  ground  or  another  to  permit  the  representative  of  the  forum  to 
sue.  Vawter  v.  R.  R.  Co.,  84  Mo.  679,  54  Am.  Rep.  105 ;  Ash  v.  R.  R.  Co., 
72  Md.  144,  19  Atl.  643 ;  Richardson  v.  R.  R.  Co.,  98  Mass.  85  ;  Taylor  v. 
Penn.  Co.,  78  Ky.  348,  39  Am.  Rep.  244.  But  see  Bruce  r.  R.  R.  Co.,  83 
Ky.  174. 

16 


242  PAYMENTS   TO   FOREIGN    iiEPKESENTATIVE.      §  109 

the  proper  plaintiffs  wherever  the  forum  may  be.'  Thus,  in  a 
leading  New  York  case,  Wooden  v.  R.  R.  Co.,'  the  death  oc- 
curred in  Pennsylvania,  whose  law  authorized  the  widow  to  sue, 
and  suit  was  brought  by  the  widow  in  New  York,  whose  law  re- 
quired suit  to  be  brought  by  the  executor  or  administrator.  It 
was  held  that  the  widow  was  entitled  to  sue  in  New  York,  with- 
out being  appointed  administrator  there. 

The  very  converse  of  this  case  was  decided  in  Usher  v.  R.  R. 
Co.^*  The  New  Jersey  statute  provided  that  the  personal  repre- 
sentative should  sue  for  death  by  wrongful  act.  The  Penn- 
sylvania statute  called  for  suit  by  the  widow.  Upon  a  death 
occurring  in  New  Jersey,  the  widow  sued  in  Pennsylvania,  with- 
out appointment  as  administrator.  It  was  held  that  the  suit 
could  not  be  maintained. 

§  109.  Voluntary  Payment  of  Debts  to  Foreign  Represent- 
ative. —  In  England  it  is  held  that,  since  the  administrator  has 
no  authority  to  act  outside  of  the  jurisdiction  from  which  his 
powers  are  derived,  the  payment  of  a  debt  to  a  foreign  adminis- 
trator will  be  no  bar  to  a  suit  by  an  ancillary  administrator  in 
the  debtor's  domicil,  unless  the  debt  be  made  payable  in  the 
country  of  such  foreign  administrator.^ 

But  in  the  United  States  the  general  rule  is  that  if  there  is 
no  need  of  an  ancillary  administration  in  the  domicil  of  the 
debtor,  and  if  the  foreign  administrator  may  lawfully  receive 
the  payment  under  the  laws  of  his  appointment,  a  payment  to 
him  in  another  State  will  operate  as  a  discharge  of  the  debt.' 
Not  only  is  such  a  payment,  though  made  to  a  foreign  executor 
or  administrator,  a  discharge  of  the  debt,  so  far  as  the  debtor  ia 

8  But  if  the  plaintiff  named  by  the  lex  delicti  is  merely  a  nominal  plaintiff, 
—  as  the  State  itself,  —  the  party  named  by  the  lex  fori,  it  seems,  may  bring 
the  suit.     Stewart  v.  R.  R.  Co.,  168  U.  S.  445. 

»  126  N.  Y.  10. 

10  126  Penn.  St.  207,  17  Atl.  597. 

1  Preston  v.  Melville,  8  CI.  &  F.  (H.  L.)  12,  14. 

2  Doolittle  V.  Lewis,  7  Johns.  Oh.  (N.  Y.)  45,  11  Am.  Dec.  389,  392; 
Williams  v.  Storrs,  6  Johns.  Ch.  (N.  Y.)  353,  10  Am.  Dec.  340,  341-342  ;  Dial 
V.  Gary,  14  S.  C.  573,  37  Am.  Rep.  737,  741-742  ;  Hall  i;.  Harrison,  21  Mo. 
227,  64  Am.  Dec.  225,  227;  Wilkins  v.  Ellett,  9  Wall,  740  ;  a.  c.  108  T7.  S. 
256  ;  Mackey  v.  Coxe,  18  How.  100. 


§  110  ORDER   OF  PAYMENT   OF  DEBTS.  243 

concerned,  but  it  also  operates  to  charge  the  fiduciary  with  the 
same.  He  may  even  be  charged  as  executor  de  son  tort  in  the 
State  where  the  payment  was  made,  at  the  instance  of  creditors 
there.*  And  if  no  attempt  is  made  there  to  hold  him  answer- 
able, he  will  at  least  be  accountable  therefor  in  the  State  of  his 
appointment.* 

§  110.  Order  of  Payment  of  Decedent's  Debts  —  Marshall- 
ing of  Assets.  —  In  some  countries,  all  debts  are  of  equal  rank 
in  the  settlement  of  a  decedent's  estate,  and  are  to  be  paid  pari 
passu.  In  other  countries,  certain  debts  are  privileged  and 
take  priority  over  others,  and  the  laws  of  such  countries  will 
differ  among  themselves  as  to  the  debts  which  shall  be 
privileged. 

In  general,  the  lex  fori,  which,  if  property  is  sought  to  be 
subjected,  will  also  be  the  lex  situs,  will  govern  the  order  in 
which  creditors  are  to  be  paid.  This  is  essentially  a  question 
of  administration,  to  be  controlled  by  the  local  law.  Credit- 
ors attempting  to  subject  property  in  the  decedent's  domicil 
will  be  governed  as  to  their  relative  priorities  by  the  law  of  the 
domicil,  for  that  is  the  forum  and  situs  of  the  fund  to  be  dis- 
tributed. If  an  ancillary  administrator  is  to  pay  the  debts, 
then  their  order  will  be  determined  by  the  law  of  the  State 
where  he  is  administering  the  fund  (the  situs  and  forum),  not 
by  that  of  the  decedent's  domicil.^ 

Thus  in  Smith  v.  Bank,^  R  was  domiciled  in  Norfolk,  Va., 

»  Campbell  v.  Tousey,  7  Cow.  (N.  Y.)  64;  Glenn  v.  Smith,  2  Gill  &  J. 
(Md.)  493,  20  Am.  Dec.  452,  455  ;  Story,  Confl.  L.  §  514. 

*  Parsons  v.  Lyman,  20  N.  Y.  103 ;  Fay  v.  Haven,  3  Met.  (Mass.)  109, 115, 
116.     See  Story,  Confl.  L.  §  514  o. 

1  Story,  Confl.  L.  §§  524,  525  ;  Whart.  Confl.  L.  §  624  ;  Harrison  v. 
Sterry,  5  Cr.  289 ;  Smith  v.  Bank,  5  Pet.  518,  526-527 ;  Dawes  v.  Head, 
3  Pick.  (Mass.)  128  ;  Miller's  Estate,  3  Eawle  (Penn.),  312,  24  Am.  Dec.  345, 
350  ;  De  Sobry  v.  De  Laistre,  2  Harr.  &  J.  (Md.)  191,  3  Am.  Dec.  535,  542: 
Holmes  v.  Remsen,  20  Johns.  (N.  Y.)  229,  11  Am.  Dec.  269,  280  ;  Derringer 
V.  Derringer,  5  Hous.  (Del.)  416,  1  Am.  St.  Eep.  150.  The  same  principle  is 
applicable  even  to  judgments  rendered  in  a  State  other  than  that  of  adminis- 
tration, and  that,  too,  despite  the  ' '  full  faith  and  credit "  clause  of  the  federal 
constitution.     McElmoyle  v.  Cohen,  13  Pet.  312. 

2  5  Pet.  518. 


244  OBDER   OF   PAYMENT   OF   DEBTS.  §  110 

and  there  contracted  a  debt  on  bond  to  T.  He  was  also  in- 
debted to  the  Union  Bank  of  Georgetown,  D.  C.,  on  simple 
contract.  He  died  intestate,  leaving  personalty  in  Washing- 
ton, of  which  administration  was  there  granted.  By  the  law 
governing  the  District  of  Columbia,  all  debts  were  of  equal 
dignity  in  administration,  but  by  the  law  of  Virginia,  where 
R  was  domiciled,  debts  on  bond  were  preferred.  The  assets  in 
the  hands  of  the  administrator  were  insufficient  to  discharge 
both  debts.  It  was  held  that  the  law  of  the  District  (the  situs 
and  forum)  should  prevail,  and  that  the  two  claimants  should 
share  part ^assM.  In  the  course  of  its  opinion  the  court  said: 
"  Every  sovereign  has  his  own  code  of  administration,  varying 
to  infinity  as  to  the  order  of  paying  debts ;  and  almost  without 
exception  asserting  the  right  to  be  himself  first  paid  out  of  the 
assets.  And  the  obligation  in  the  administrator  to  conform  to 
such  laws  is  very  generally  enforced,  not  only  by  a  bond  but 
on  oath.  On  what  principle  shall  we  insert  into  all  those  laws 
an  amendment  in  favor  of  foreign  creditors  ?  " 

The  same  principles  govern  the  marshalling  of  the  decedent's 
assets  (that  is,  the  arrangement  of  them  in  such  a  way  as  to 
make  them  go  as  far  as  possible  towards  the  payment  of  all  his 
debts  and  charges). 

The  rules  regulating  this  subject,  in  common  with  all  the 
other  incidents  attending  the  administration  of  a  decedent's 
estate,  are  those  prescribed  by  the  law  of  the  place  where  the 
assets  administered  are  situated  (lex  fori  et  situs).*  But  no 
attempt  should  ever  be  made  by  a  court,  in  the  course  of  admin- 
istration, to  marshal  assets  in  whole  or  in  part  outside  of  its 
jurisdiction.  The  injustice  which  may  result  from  such  a 
course  (leaving  out  of  consideration  the  court's  lack  of  jurisdic- 
tion in  the  premises)  is  most  forcibly  illustrated  by  the  case  of 
Bice  V.  Harbeson.* 

8  Story,  Confl.  L.  §  524.  See  Harvey  v.  Richards,  1  Mason,  C.  C.  380, 
422. 

♦  63  N.  Y.  493.  In  that  case,  M,  an  Irishman  domiciled  in  New  York, 
died  there  possessed  of  personalty  in  New  York,  and  also  of  certain  land  in 
South  Carolina,  upon  which  he  had  placed  a  mortgage.  By  his  will  he  left 
all  his  property,  after  payment  of  his  debts,  to  be  divided  into  seven  shares, 


§  111     creditor's  rights  against  the  heir.        245 

Pari  ratione,  the  lex  fori  et  situs  will  determine  the  nature 
of  the  assets  there  situated,  as  whether  they  are  to  be  deemed 
real  or  personal,  legal  or  equitable.  Indeed  this  is  in  the  main 
but  an  application  of  a  familiar  rule,  presently  to  be  discussed, 
that  the  lex  fori  controls  matters  of  procedure,  pertaining 
merely  to  the  remedy.* 

§  111.  Right  of  Creditor  to  Subject  Decedent's  Laud  in 
Hands  of  the  Heir.  —  Questions  of  this  character,  though  not 

one  to  go  to  the  children  of  his  deceased  sister,  J,  and  the  other  six  shares  to 
go  to  other  relatives,  all  of  whom  except  the  children  of  J  were  aliens.  The 
will  was  probated  in  New  York  as  a  will  of  personalty  and  realty,  but  was 
void  in  South  Carolina  as  a  will  of  lands,  because  the  South  Carolina  law 
required  three  witnesses  to  such  wills,  there  being  only  two  in  this  case. 
Moreover,  the  law  of  South  Carolina  not  permitting  aliens  to  inherit  land,  all 
the  relatives  of  M  were  cut  off  from  inheriting  the  South  Carolina  land  as 
heirs,  except  the  children  of  J.  They  therefore  brought  suit  against  the  ex- 
ecutor to  recover  the  land  as  the  sole  heirs  of  M.  The  South  Carolina  court 
gave  judgment  for  J's  children,  and  ordered  the  executor  to  pay  the  mortgage 
out  of  M's  personal  estate  (which  was  in  New  York).  Upon  a  final  account- 
ing by  the  executor  in  Neio  York,  the  mortgagee  presented  his  claim,  which 
was  allowed  by  the  surrogate  and  ordered  to  be  paid  out  of  the  personal 
estate.  This  was  reversed  by  the  General  Term,  and  its  decision  was  con- 
firmed by  the  Court  of  Appeals,  upon  the  ground  that  the  testator  intended 
that  his  whole  estate  should  bear  the  burden  of  his  debts,  not  the  personalty 
only,  which  latter  view  would  deprive  the  foreign  legatees  of  their  portions, 
since  they  were  cut  out  of  all  participation  in  the  South  Carolina  land.  The 
New  York  court  therefore  decreed  that  the  assets  should  be  marshalled,  and 
that  the  mortgagee,  having  two  funds  for  his  security,  must  select  that  one 
which  would  least  impair  the  testator's  intent.  The  result  was,  that,  while 
protecting  the  foreign  legatees,  the  court  deprived  the  mortgagee  by  its  action 
of  all  recourse,  notwithstanding  the  established  principle  that  the  marshal- 
liug  of  assets,  as  well  as  exoneration,  is  subsidiary  to  the  payment  of  debts, 
which  is  the  first  of  all  the  duties  of  administration. 

The  mere  statement  of  this  conclusion  suflBces  to  show  that  either  the  South 
Carolina  or  the  New  York  court  was  guilty  of  error. 

It  is  respectfully  submitted  that  both  courts  acted  in  part  beyond  their 
jurisdiction.  The  South  Carolina  court  had  no  authority  to  decree  exonera- 
tion of  South  Carolina  land  out  of  New  York  personalty,  and  the  New  York 
court  had  no  authority  to  marshal  assets  which  were  in  South  Carolina  and 
outside  its  own  jurisdiction.  It  could  lawfully  enforce  the  testator's  inten- 
tion only  so  far  as  the  property  in  New  York  was  concerned. 

6  Post,  §§  205-207.  See  Dickinson  v.  Hoomes,  8  Gratt.  (Va.)  353,  410; 
post,  §  111. 


246        creditor's  rights  against  the  heir.      §  111 

strictly  a  part  of  the  administration  of  a  decedent's  estate,  are 
so  closely  connected  with  it  that  they  may  very  appropriately 
be  discussed  in  this  connection. 

It  is  the  better  opinion  that  the  rights  of  a  creditor  against  a 
decedent's  land  are  to  be  determined  by  the  lex  situs  of  the 
land  sought  to  be  subjected,  or  in  respect  to  which  the  right  is 
claimed,  not  by  the  law  of  the  place  of  contract,  nor  by  the  lex 
domicilii  of  the  decedent  or  creditor. 

The  very  question  whether  a  party  claiming  the  right  to  sub- 
ject the  decedent's  land  is  a  creditor  at  all,  so  far  as  the  realty 
is  concerned,  is  to  be  determined  by  the  lex  situs  of  the  land. 
Thus,  in  a  Kentucky  case,^  an  Ohio  probate  court,  under  the 
law  of  that  State,  gave  a  widow  an  allowance  of  $4,000  for  her 
support  for  one  year,  declaring  it  a  lien  on  her  deceased  hus- 
band's lands.  Upon  her  seeking  to  enforce  the  lien  so  created 
upon  some  of  her  husband's  land  in  Kentucky,  the  court  held 
that,  according  to  Kentucky  law  (the  lex  situs),  the  allowance 
was  not  a  debt  of  the  estate,  and  would  not  be  enforced  there 
against  the  lands  in  the  hands  of  the  heir. 

In  Dickinson  v.  Hoomes,*  land  in  Virginia  had  been  conveyed 
with  a  covenant  of  general  warranty  on  the  part  of  the  grantors 
and  their  heirs.  Subsequently  the  heirs  set  up  title  to  the  land 
under  a  prior  will,  and  sued  to  recover  part  thereof  from  an  as- 
signee of  the  original  grantee.  The  defendant  set  up  by  way  of 
lebutter  certain  lands  in  Kentucky  descended  upon  the  plain- 
tiffs from  their  ancestor,  the  grantor.  It  was  held  that  the 
question  whether  or  not  the  Kentucky  lands  were  assets  for  the 
payment  of  what  might  be  due  upon  breach  of  the  covenant, 
was  to  be  determined  in  accordance  with  the  law  of  Kentucky 
(lex  situs). 

Conflicts  too  sometimes  arise  between  the  lex  domicilii  of  a 
deceased  debtor,  or  the  lex  loci  contractus  of  a  debt  or  contract, 
and  the  lex  situs  of  the  decedent's  lands,  as  to  whether  certain 
lands  are  to  be  applied  to  the  payment  of  his  debts  before 
others;  or  where  by  one  law  the  heirs  are  liable  to  the  ances- 
tor's debts  in  proportion  to  their  shares  only,  while  by  the  other 

»  Short  V.  Galway,  83  Ky.  501.  ^  g  Gf^tt.  {Va. )  353,  410. 


§  112  EXONERATION  AND   CONTRIBUTION.  247 

each  heir  is  liable  for  the  whole  debt  to  the  extent  of  the  land 
descended  upon  him.  In  all  such  cases,  it  would  seem  that  the 
lex  situs  of  the  particular  land  in  question  should  govern,  since 
the  question  is  one  of  charging  the  land  with  the  debt.  All 
liens,  transfers,  and  charges  upon  real  estate,  it  is  believed,  are 
governed  by  the  lex  situs  of  the  land.' 

§  112.  Exoneration  of  Realty  out  of  Personalty,  and  vice 
▼ersa  —  Contribution  bet'ween  Heirs  or  Devisees.  —  Cases 
sometimes  occur  in  which  a  decedent  dies,  possessed  of  lands  in 
one  country  and  personalty  in  another,  the  heirs  or  devisees 
succeeding  to  the  land  and  the  personal  representative  to  the 
personalty.  The  laws  of  one  of  these  countries  may  make  the 
personalty  primarily  liable  for  certain  debts,  while  the  laws  of 
the  other  may  make  the  land  primarily  liable  for  them. 

If  under  these  circumstances  the  creditors  of  the  decedent 
subject  his  lands  in  one  State  (in  the  hands  of  his  devisees  or 
heirs),  perplexing  questions  will  arise  as  to  the  right  of  the 
heirs  or  devisees  to  exoneration  and  reimbursement  out  of  the 
personalty  situated  in  another  State  for  the  loss  imposed  iipon 

»  Whart.  Confl.  L.  §  291  ;  Story,  Confl.  L.  §§  489  a,  489  b ;  La  Selle  v. 
Woolery,  14  Wash.  70,  32  L.  R.  A.  75.  But  see  Story,  Confl.  L.  §  268  ;  Brown 
V.  Richardson,  1  Mart.  N.  s.  (La.)  202.  These  last  references  relate  to  a  case 
of  a  somewhat  different  character,  where  the  question  is  not  as  to  the  manner 
in  which  the  land  shall  be  subjected,  but  whether  it  can  be  subjected  to  the 
decedent's  debt  at  all.  In  Brown  v.  Richardson,  supra,  the  decedent,  owning 
lands  in  Louisiana,  contracted  a  debt  in  another  State  by  whose  law  (the  com- 
mon law)  heirs  were  not  bound  by  the  simple  contracts  of  their  ancestor.  By 
the  law  of  Louisiana,  the  heirs  were  bound  by  such  contracts.  In  a  suit  by 
the  creditor  in  Louisiana  to  subject  the  lands  in  the  hands  of  the  heir,  it  was 
held  that  this  pertained  to  the  obligation  of  the  contract,  and  was  to  be  deter- 
mined by  the  law  governing  the  contract  itself  (lex  loci  contractus).  This 
decision  receives  the  approval  of  Judge  Story  ;  but  its  soundness  is  doubtful, 
since  a  charge  is  thereby  established  upon  the  land,  contrary  to  the  lex  situs. 
It  is  closely  analogous  to  the  case  of  the  charge  created  by  a  married  woman's 
contract  upon  her  equitable  separate  estate  in  land,  which,  according  to  the 
better  opinion,  is  governed  by  the  lex  situs,  not  by  the  lex  loci  contractus. 
La  Selle  v.  Woolery,  14  Wash.  70,  32  L.  R.  A.  75  ;  Wick  v.  Dawson,  42 
W.  Va.  43,  24  S.  E.  587;  Johnston  v.  Gawtry,  11  Mo.  App.  322  ;  Bank  v. 
Williams,  46  Miss.  618,  12  Am.  Rep.  319  ;  Cochran  v.  Benton,  126  Ind.  58, 
25  N.  E.  870.  But  see  Spearman  v.  Ward,  114  Penn.  St.  634,  8  Atl.  430  ; 
Story,  Confl.  L.  §  267. 


248  EXONERATION  AND  CONTRIBUTION.  §  112 

them  ;  and  on  the  other  hand,  if  the  personalty  is  first  subjected, 
a  similar  question  will  arise  touching  the  rights  of  the  parties 
succeeding  thereto  to  exoneration  out  of  the  realty.^ 

Let  us  suppose,  for  instance,  that  A,  domiciled  in  Virginia, 
mortgages  land  owned  by  him  in  Scotland,  and  dies  possessed 
of  the  Scotch  land  and  Virginia  personalty.  By  the  law  of  Vir- 
ginia (lex  domicilii)  the  personal  estate  is  primarily  bound  to 
pay  the  mortgage  debt,  while  under  the  Scotch  law  (we  will 
suppose)  land  mortgaged  is  primarily  liable  to  pay  the  mortgage. 
Under  these  circumstances,  the  heirs  in  Scotland  pay  off  the 
mortgage  and  release  the  land.  Are  they  entitled  to  relief  in 
Virginia  out  of  the  decedent's  personalty  ?  ^ 

In  solving  this  problem,  and  others  similar  to  it,  it  must  be 
observed  first  of  all  that  the  general  creditors  of  the  decedent 
are  not  interested;  the  decedent's  debts  have  been  paid,  and  it 
is  purely  a  contest  between  the  successors  to  the  land  and  the 
successors  to  the  personalty  of  the  decedent,  as  to  who  shall 
ultimately  bear  the  burden  of  the  debt.  But  the  very  fact  that 
one  of  the  decedent's  representatives  is  claiming  exoneration 
out  of  the  estate  in  the  hands  of  the  other  constitutes  the  first  a 
quasi-creditor  of  the  latter  estate,  in  equity,  should  his  claim 
be  valid. 

An  heir  or  devisee  claiming  exoneration  out  of  the  person- 
alty cannot  claim  to  be  such  a  quasi-creditor  of  the  personalty, 
unless  the  lex  situs  of  the  land  makes  the  real  estate  only  sub- 
sidiarily liable.'  In  the  latter  event  he  can  in  that  State 
doubtless  claim  exoneration  out  of  the  personalty,  and  should 
there  be  any  personal  estate  actually  situated  there  the  courts 
of  that  country  (the  situs  of  the  land)  will  probably  administer 

1  In  such  cases  (all  creditors  being  paid)  the  personalty  of  the  decedent, 
wherever  it  may  be  actually  situated,  must  be  deemed  in  law  to  be  situated 
at  the  domicil  of  the  owner  (the  decedent).  The  law  of  his  last  domicil  there- 
fore will  furnish  the  law  governing  the  primary  liability  of  the  personalty. 

*  This  case  nearly  resembles  the  case  of  Drummond  v.  Drummond,  6  Bro. 
P.  C.  601,  quoted  by  Sir  "William  Grant  in  Brodie  v.  liarry,  2  Ves.  &  B.  127, 
132  ;  infra,  note  11. 

'  Drummond  v.  Drummond,  6  Bro.  P.  C.  601,  cited  in  Brodie  r.  Barry, 
2  Ves.  &  B.  127,  132  ;  Elliott  v.  Lord  Minto,  6  Madd.  16 ;  Earl  of  "Win. 
ehelsea  v.  Garetty,  2  Keen,  293,  308-309. 


?  112  EXONEBATION   AND  CONTRIBUTION.  249 

it  in  accordance  with  its  own  laws,  whether  or  not  the  same 
right  he  given  hy  the  lex  domicilii  of  the  decedent.  Here  the 
situs  of  the  realty  is  identical  with  the  actual  situs  of  the  per- 
sonalty, and  the  lex  situs  will  prevail. 

But  if  there  should  be  no  personalty  in  the  situs  of  the  land, 
or  not  enough  to  exonerate  the  heir  or  devisee,  the  two  sorts  of 
property  may  be  subject  to  different  laws.  Yet  if  by  the  lex 
domicilii  of  the  decedent,  as  well  as  by  the  lex  situs  of  the  land, 
the  heir  or  devisee  under  such  circumstances  is  entitled  to  ex- 
oneration out  of  the  personal  estate,  the  courts  of  the  decedent's 
domici!,  or  of  any  third  State  where  the  personalty  may  be 
found,  will  recognize  his  status  as  a  quasi-creditor  of  the  per- 
sonalty created  by  the  lex  situs  of  the  land,  and  exoneration 
will  be  decreed  him.* 

If,  however,  the  lex  domicilii  of  the  decedent  does  not  recog- 
nize, under  such  circumstances,  the  heir's  or  devisee's  right  to 
exoneration,  the  mere  fact  that  the  lex  situs  of  the  realty  gives 
him  that  right  will  not  be  sufficient.  ^ 

In  other  words,  the  true  rule  would  seem  to  be  that  both  laws 
must  concur  in  making  it  a  case  for  exoneration,  before  exoner- 
ation will  be  decreed  the  heir  or  devisee  out  of  the  personalty 
(situated  elsewhere  than  in  the  situs  of  the  land). 

The  same  result  must  also  be  reached  in  cases  where  the  per- 
sonalty is  first  subjected,  and  the  successor  to  the  personalty 
thereupon  claims  exoneration  out  of  the  realty  situated  else- 
where. If  under  the  lex  domicilii  of  the  decedent  and  the  lex 
situs  of  the  land  also  the  land  is  primarily  responsible,  exoner- 
ation will  be  decreed  ;  but  if  by  either  law  the  personalty  ia 
primarily  liable,  it  must  bear  the  loss,  and  no  exoneration  will 
be  permitted.® 

E  converso,  it  was  held  in  New  York  that  if  a  debt  of  a  dece- 
dent domiciled  in  New  York  is  not  permitted  to  be  made  out  of 
land  in  South  Carolina,  because  the  personalty  in  New  York  is 
by  the  law  of  South  Carolina  primarily  liable  therefor,  neither 

*  Anonymous,  9  Mod.  66  ;  Earl  of  Winchelsea  r.  Garetty,  2  Keen,  293. 
6  Rice  V.  Harbeson,  63  N.  Y.  493. 

*  Earl  of  WincheLsea  v.  Garetty,  2  Keen,  293,  308-310.  See  Story,  Confl, 
L.  §  26«o,     But  see  In  re  Hewit,  3  Ch.  568. 


250  EXONERATION   AND   CONTRIBUTION.  §  112 

can  the  debt  be  made  out  of  the  personalty  in  New  York,  which 
is  there  made  subsidiarily  liable  only.  The  result  was  that  the 
creditor  lost  his  debt  entirely.  The  mere  mention  of  this  con- 
sequence is  to  state  that  there  must  have  been  some  error  in  the 
conclusion.'^ 

Several  illustrations  may  be  given  of  the  general  principle 
regulating  these  cases;  namely,  that,  in  order  for  the  doctrine 
of  exoneration  to  apply,  the  lex  situs  of  both  the  realty  and  the 
personalty  must  permit  it. 

In  an  English  case,^  a  testator  domiciled  in  Holland  owned 
land  there  and  personalty  in  England.  He  devised  all  his  real 
estate  to  one  person  and  all  his  personalty  to  another,  whom 
he  appointed  his  executor.  The  testator  owed  some  specialty 
debts  and  some  simple  contract  debts  to  persons  in  Holland,  to 
satisfy  which  he  had  no  property  in  Holland  but  the  land.  By 
the  laws  of  Holland,  if  decedent  had  no  other  assets,  his  land 
might  be  subjected  to  the  payment  of  his  debts,  both  by  spe- 
cialty and  simple  contract,  and  the  land  in  Holland  was  sub- 
jected accordingly.  The  devisee  then  sued  the  executor  and 
legated  of  the  personalty  in  England  for  exoneration  out  of  the 
personalty.  The  law  of  both  countries  made  the  personalty 
primarily  responsible,  and  exoneration  was  accordingly  decreed 
out  of  the  English  personalty.* 

In  Earl  of  Winchelsea  v.  Garetty,^"  one  domiciled  in  Eng- 
land and  possessed  of  personalty  there,  owned  real  estate  in 

'  Rice  V.  Harbeson,  63  N.  Y.  493.  The  facts  of  this  case  have  already 
been  given,  and  what  is  believed  to  have  been  the  error  of  the  court  pointed 
out.  Ante,  §  110,  note  4.  It  is  to  be  observed  that  this  case  was  not  strictly 
one  of  exoneration.  The  question  there  did  not  arise  between  the  successors 
to  the  land  and  the  successors  to  the  personalty,  but  the  creditor  was  a  party. 
It  was  he  who  bore  the  loss. 

8  Anonymous,  9  Mod.  66. 

9  In  this  case,  it  is  to  be  noted  that  the  domicil  of  the  testator  was  in  Hol- 
land, where  the  land  was  situated.  The  legal  situs  of  the  personalty  was 
therefore  in  Holland  also,  except  for  purposes  of  administration.  It  is  prob- 
able that  even  if  the  law  of  England  had  not  made  the  personalty  ultimately 
liable  for  the  debts,  the  law  of  Holland  would  have  prevailed,  at  least  unless 
the  legatee  of  the  personalty  were  domiciled  in  England. 

w  2  Keen.  293.  308-310. 


§  112  EXONERATION  AND   CONTRIBUTION.  251 

Scotland.  He  contracted  certain  debts  and  died.  The  cred- 
itors went  against  the  land  in  Scotland  and  subjected  it,  and 
the  heirs  sought  exoneration  out  of  the  English  personalty. 
The  Scotch  law  distinguished  between  "heritable  bonds"  and 
"movable  debts,"  making  the  former  primarily  chargeable  on 
the  land,  and  the  latter  on  the  personal  estate.  The  decedent's 
debts  belonged  to  the  latter  class.  The  English  law  made  the 
personalty  primarily  liable  for  all  debts.  The  English  court 
held  that  exoneration  should  be  decreed  on  the  ground  that  the 
heir  was  made  a  quasi-creditor  of  the  personal  estate  by  the  law 
of  Scotland  (the  situs  of  the  land),  and  the  English  law  coin- 
ciding, there  was  no  reason  why  exoneration  should  be  denied. 

On  the  other  hand,  in  Drummond  v.  Drummond,"  a  person 
domiciled  in  England  owned  real  estate  in  Scotland,  upon  which 
he  granted  a  "heritable  bond"  to  secure  a  debt  contracted  in 
England.  He  died  intestate;  and  the  question  was  whether 
this  debt  was  ultimately  to  be  borne  by  the  real  or  personal 
estate.  By  English  law  the  personal  estate  was  the  primary 
fund  for  the  payment  of  all  debts.  By  the  law  of  Scotland,  the 
real  estate  was  the  primary  fund  for  the  payment  of  "  heritable 
bonds."  It  was  said  for  the  heir  that  the  personal  estate  must 
be  distributed  according  to  the  law  of  England  (the  decedent's 
domicil),  and  must  bear  all  the  burdens  to  which  it  is  by  that 
law  subject.  But  in  answer  to  th^p  it  was  said  that  the  land 
must  go  to  the  heir  in  accordance  with  the  law  of  Scotland, 
bearing  all  the  burdens  to  which  it  is  by  that  law  subject.  The 
•court  refused  to  decree  exoneration.  In  this  case  the  laws  of  the 
situs  of  the  two  funds  were  in  conflict. 

In  Staigg  V.  Atkinson, ^^  a  testator,  after  charging  his  lands 
with  the  payment  of  his  debts,  provided  for  his  widow,  without 
expressing  an  intention  to  bar  her  of  her  dower.  He  owned 
lands  in  Minnesota  and  certain  mortgaged  lands  in  Massa- 
chusetts. The  executor,  under  a  power  in  the  will,  sold  the 
Minnesota  land  and  brought  the  proceeds  to  Massachusetts.    By 

"  6  Bro.  P.  C.  601,  cited  in  Brodie  ».  Barry,  2  Ves.  &  B.  127, 132,  and  ia 
Story,  Conft.  L.  §  487. 

13  144  Maas.  564,  12  N.  £.  854. 


262  EXONERATION   AND   CONTRIBUTION.  §  112 

the  Minnesota  law,  the  provision  for  the  wife  in  the  will  did 
not  har  her  dower  in  the  land  there  in  the  absence  of  an  ex- 
pressed intention  to  that  effect  in  the  will.  That  law  also  pro- 
vided that  her  dower  should  be  subject,  in  its  just  proportion 
with  the  other  real  estate,  to  such  debts  of  the  deceased  as  were 
not  paid  out  of  his  personal  estate.  By  Massachusetts  law  her 
dower  was  free  from  the  debts  of  her  husband.  By  the  common 
law  of  both  States,  when  mortgaged  land  and  other  land  of  a 
decedent  were  both  charged  together  with  debts,  they  were 
bound  to  contribute  ratably  to  the  payment.  The  widow  sued 
the  executor  in  Massachusetts  for  her  dower  share  in  the  pro- 
ceeds of  the  Minnesota  lands,  claiming  that  she  was  entitled 
thereto  free  from  any  duty  to  contribute  to  pay  off  the  mortgage 
on  the  Massachusetts  land.  But  the  Massachusetts  court  held 
that  she  must  contribute,  since  under  the  lex  situs  of  the  Min- 
nesota land  she  was  bound  to  contribute,  in  the  absence  of  per- 
sonalty sufficient  to  pay  the  husband's  debts,  and  since  by  the 
laws  of  both  States  mortgaged  land  was  entitled  to  exoneration 
pro  rata  out  of  the  other  lands  of  the  decedent." 

The  equitable  principle  of  contribution  between  heirs  or  devi- 
sees in  the  administration  of  their  deceased  ancestor's  estate 
is  closely  assimilated  to  that  of  exoneration,  and  in  the  main 
would  seem  to  be  governed  by  similar  rules,  when  the  lands 
in  possession  of  the  several  heirs  or  devisees  are  in  different 
States,  whose  laws  are  conflicting  touching  the  order  in  which 
the  lands  are  to  be  primarily  liable  for  the  debts.  Indeed,  con- 
tribution in  these  cases  is  but  a  partial  exoneration. 

The  same  general  principles  are  applicable  here.  If  the  heir 
'^f  land  in  one  State,  subjected  to  a  debt  of  his  ancestor,  claims 
exoneration  or  contribution  from  the  heir  of  the  lands  in  an- 
other State,  not  only  must  he  show  himself  entitled  to  such 
relief  by  the  law  of  the  place  where  his  own  land  is  situated, 
whereby  he  is  constituted  a  quasi-creditor  of  the  other  heir, 
but  the  same  relief  must  also  be  open  to  him  under  the  law  of 
the  State  where  the  land  in  the  hands  of  the  second  heir  is 
situated.^* 

18  See  also  Maxwell  v.  Hyslop,  L.  R.  4  Eq.  407. 

M  See  Staigg  v.  Atkinson,  144  Mass.  564,  12  N.  E..354. 


§  113  ANCILLARY  ADMINISTRATIONS.  253 

§  113.  Termination  of  Status  of  Executors  or  Administra* 
tors  —  Auxiliary  or  Ancillary  Administrations.  —  It  has  already 
been  observed  that  the  fiduciary  status  is  peculiar,  being  recog- 
nized by  the  law,  not  for  the  benefit  of  the  fiduciary  himself, 
nor  chiefly  for  the  benefit  of  the  legatees  or  other  beneficiaries, 
but  mainly  for  the  purpose  of  dealing  with  third  persons,  cred- 
itors, debtors,  or  claimants  of  the  estate.  Such  third  persona 
may  be  residents  of  the  decedent's  domicil  or  of  other  States, 
and  the  decedent's  personalty  may  have  its  actual  situs  in  his 
domicil  or  elsewhere. 

The  primary  or  principal  administration  is  that  conducted  at 
the  domicil  of  the  decedent,  for  there  is  the  legal  situs  of  his 
personal  property.  But  the  legal  situs  of  the  personalty  yields 
to  the  actual  situs  wherever,  under  the  general  exceptions  to 
the  ''proper  law,"  the  lex  fori  may  be  substituted  for  the  lex 
domicilii.  Administration  proceedings  constitute  one  of  these 
exceptions,  for  the  protection  of  residents  of  the  forum. 

Hence,  as  we  have  seen,  the  domiciliary  or  principal  admin- 
istrator will  not  ordinarily  be  permitted  to  administer  assets  iu 
another  State,  merely  by  virtue  of  his  domiciliary  appointment 
and  qualification,  but  there  must  be  a  fresh  appointment  and 
qualification  in  every  State  where  there  are  assets. 

These  are  known  as  ancillary  administrations  because  they 
are  subordinate  and  auxiliary  to  the  principal  or  primary  or 
domiciliary  administration,  and  after  their  purposes  are  served 
by  satisfying  all  creditors  and  claimants  in  the  State  of  their 
creation,  they  are  ultimately  responsible  to  the  principal  ad- 
ministration for  the  balance  of  the  assets  unadministered,  and 
are  generally  bound  to  remit  such  balance  to  the  domicil  for 
distribution.  Such  is  the  general  theory  of  ancillary  adminis- 
trations.^ 

1  Wilkins  v.  Ellett,  9  Wall.  740,  742  ;  Harvey  v.  Richards,  1  Mason,  C.  C. 
380,  409 ;  Parsons  v.  Lyman,  20  N.  Y.  103  ;  Despard  v.  Churchill,  53  N.  Y. 
192,  200;  Cross  r.  Trust  Co.,  131  N.  Y.  330,  346;  Graveley  r.  Graveley, 
25  S.  C.  1,  60  Am.  Rep.  478,  482  ;  Stevens  v.  Gaylord,  11  Mass.  256  ;  Dawes 
V.  Head,  3  Pick.  (Mass.)  128,  145,  147  ;  Davis  v.  Estey,  8  Pick.  475  ;  Jenni- 
son  V.  Hapgood,  10  Pick.  77, 19  Am.  Dec.  258  ;  Fay  v.  Haven,  3  Met.  (Maas.) 
109,  114 ;  Merrill  v.  Ina.  Co.,  103  Mass.  245,  248;  Welles'  Estate,  161  Pena 
St  218,  28  Atl.  1116. 


254  ANCILLARY  ADMINISTRATIONS.  §  113 

The  rights,  duties,  and  liabilities  of  the  principal  and  ancil- 
lary administrators,  while  administering  the  funds  in  their 
hands,  have  already  been  considered  in  preceding  sections,^  and 
will  not  be  here  repeated.  It  may  be  observed  however  in  this 
connection  that  although  it  is  often  assumed  that  ancillary  ad- 
ministrations are  created  solely  for  the  benefit  of  such  claimants 
as  are  residents  of  the  forum,*  and  although  that  in  truth  is 
the  real  basis  upon  which  they  rest,  yet  such  administrations 
being  once  created,  both  convenience,  comity,  and  justice  re- 
quire that  the  courts  of  the  forum  should  be  open  to  all  claim- 
ants who  choose  to  prove  their  claims  there,  provided  such 
liberality  would  not  work  an  injury  to  those  who  are  actually 
citizens  of  the  forum,  as  by  exhausting  the  assets  and  forcing 
the  citizens  themselves  to  resort  to  the  domiciliary  forum.* 

But  it  is  especially  to  the  relations  between  the  ancillary  and 
domiciliary  administrations  that  attention  will  now  be  directed. 

Generally  speaking,  it  is  the  duty  of  the  ancillary  adminis- 
tration to  collect  and  pay  all  debts  and  claims  by  or  against  the 
estate,  arising  in  the  State  of  such  administration,  and  then  to 
make  a  settlement  before  the  courts  of  that  State  pursuant  to 
its  laws,*  finally  remitting  any  balance  found  to  exist  to  the 

»  Ante,  §§  105  et  seq. 

«  See  Despard  v.  Churchill,  53  N.  Y.  192, 199-200  ;  Graveley  v.  Grareley, 
26  S.  C.  1,  60  Am.  Rep.  478,  483  ;  "Welles"  Estate,  161  Penn.  St.  218,  28  Atl. 
1116,  1117  ;  Stevens  v.  Gaylord,  11  Mass.  256,  269. 

4  De  Sobry  v.  De  Laiatre,  2  Har.  &  J.  (Md.)  191,  3  Am.  Dec.  535,  536; 
Goodall  V.  Marshall,  11  N.  H.  88,  35  Am.  Dec.  472,  477-479  and  note; 
Dawes  r.  Head,  3  Pick.  (Mass.)  128,  145  ;  Harvey  v.  Richards,  1  Mason,  C.  C. 
880,  407.  See  Bank  v.  Lacombe,  84  N.  Y.  267  ;  Atherton  Co.  v.  Ives,  20 
Fed.  894  ;  Sturtevant  v.  Armsby  Co.,  m  N.  H.  557,  23  Atl.  368.  In  the  last 
case  a  distinction  is  taken  between  citizens  of  one  of  the  States  of  the  Union 
and  citizens  of  foreign  countries.  This  question  or  one  closely  analogous  is 
discussed  hereafter.     Post,  §  138. 

s  Lamar  v.  Micou,  112  U.  S.  452  ;  Vaughn  v.  Northup,  15  Pet.  1 ;  McLean 
V.  Meek,  18  How.  16,  18 ;  Harvey  v.  Richards,  1  Mason,  C.  C.  380,  414  ;  Ste- 
vens V.  Gaylord,  11  Mass.  256,  269  ;  Dawes  v.  Head,  3  Pick.  (Mass.)  128, 144  ; 
Parsons  v.  Lyman,  20  N.  Y.  103  ;  Despard  v.  Churchill,  53  N.  Y.  192,  199  ; 
Graveley  v.  Graveley,  25  S.  C.  1,  60  Am.  Rep.  478,  482  ;  Russell  v.  Hooker,  67 
Conn.  24, 34  Atl.  711,  712.  The  cases  show  that  in  general  the  accountability 
cf  an  ancillary  administrator  is  solely  to  the  courts  of  his  own  State.     See 


§  113  ANCILLARY   ADMINISTRATIONS.  265 

domiciliary  administration,  there  to  be  administered  and  dis- 
tributed as  the  lex  domicilii  of  the  decedent  directs. 

But  it  must  not  be  supposed  that  the  courts  of  the  State  of 
ancillary  administration  are  always  bound  to  remit,  that  they 
have  no  jurisdiction  to  retain  and  themselves  distribute  the 
balance.  It  seems  to  have  been  supposed  at  one  time  that  there 
was  no  other  step  save  to  remit  the  balance  to  the  courts  of  the 
domicil,  and  that  legatees  or  distributees,  though  residing  in 
the  State  of  ancillary  administration,  must  apply  to  the  domi- 
ciliary courts  for  the  distribution.®  But  the  modern  and  more 
reasonable  doctrine  is  that  it  is  not  a  matter  of  jurisdiction,  but 
lies  within  the  sound  judicial  discretion  of  the  court  adminis- 
tering the  fund,  whether  after  administration  it  shall  proceed 
to  assign  their  shares  to  resident  legatees  or  distributees,  oi 
remit  the  fund  to  the  domicil  of  the  decedent,  and  thus  force 
these  parties  to  resort  thither.  Though  the  usual  rule  is  to 
remit,  circumstances  may  justify  the  other  course.'  The  dis- 
cretion will  usually  be  exercised  in  favor  of  the  local  distribu- 
tion of  the  balance  only  in  those  cases  where  the  legatees  or 
distributees  are  citizens  of  the  forum,  where  the  funds  are  not 
needed  by  the  domiciliary  administration  for  the  payment  of 
debts,  and  where  to  remit  them  would  cause  inconvenience, 
trouble,  and  perhaps  loss  to  the  legatees  or  distributees  resident 
in  the  forum. 

Vaughn  v.  Northup,  15  Pet.  1  ;  Fay  v.  Haven,  3  Met.  (Mass.)  109,  116. 
And  until  he  has  satisfied  all  the  creditors  in  his  own  jurisdiction,  no  other 
administrator,  not  even  the  domiciliary  administrator,  can  oust  him  of  hi« 
authority  or  lay  claim  to  any  property  situated  there,  or  recover  there  of  any 
debtor  of  the  estate.  Merrill  v.  Ins.  Co.,  103  Mass.  245.  But  if  the  ancil- 
lary administrator  has  been  guilty  of  fraud  so  that  he  may  be  sued  upon  his 
personal  responsibility,  as  for  a  breach  of  trust,  he  may  be  held  accountable 
therefor  in  any  forum  acquiring  jurisdiction  over  him.  In  such  case  the 
accountability  is  in  the  court  of  chancery  for  breach  of  the  trust.  Leach  v. 
Buckner,  19  "W.  Va.  36  ;  McNamara  v.  Dwyer,  7  Pai.  Ch.  (N.  Y.)  239, 
32  Am.  Dec.  627 ;  Powell  r.  Stratton,  11  Gratt.  (Va.)  792,  797. 

6  Richards  v.  Dutch,  8  Mass.  506  ;  Dawes  v.  Boylston,  9  Mass.  337. 

'  Welles'  Estate,  161  Penn.  St.  218,  28  Atl.  1116,  1117  ;  Graveley  ». 
Graveley,  25  S.  C.  1,  60  Am.  Rep.  478  ;  Harvey  v.  Richards,  1  Mason,  C.  C. 
380,  409 ;  Despard  v.  Churchill,  53  N.  Y.  192,  200  ;  Parsons  v.  Lyman,  20 
N.  Y.  103. 


256  ANCILLARY  ADMINISTRATIONS.  §  118 

In  Graveley  v.  Graveley,'  a  testator  domiciled  in  England 
bequeathed  a  legacy  to  a  resident  of  South  Carolina,  to  be  paid 
when  he  became  twenty-one,  with  interest.  The  fund  was  in- 
yested  by  the  English  executor  in  British  consols,  bearing  three 
per  cent  interest.  The  South  Carolina  rate  of  interest  was  seven 
per  cent.  The  executor  qualified  also  in  South  Carolina,  where 
there  were  sufficient  assets  to  pay  the  legacy.  All  debts  and 
other  legacies  had  been  paid.  The  legatee  sued  the  executor 
in  the  South  Carolina  courts  for  his  legacy  with  South  Carolina 
interest.  It  was  held  to  be  a  case  for  the  exercise  of  the  court's 
discretion,  and  the  court  decreed  in  favor  of  the  legatee,  giving 
him  seven  per  cent  interest.' 

If  in  a  case  of  this  kind  there  should  be  serious  doubt  aa  to 
wh&t  is  the  lex  domicilii,  it  will  generally  be  the  duty  of  the 
court  of  ancillary  administration  to  remit  to  the  domicil  for 
distribution,  so  that  the  domiciliary  courts  may  interpret  their 
own  law." 

Even  with  respect  to  creditors  of  the  estate,  though  residents 
of  the  State  of  ancillary  administration,  the  importance  of  the 
domiciliary  administration,  as  affording  a  broader  view  of  the 
total  assets  and  liabilities  of  the  decedent,  is  recognized  by 
some  of  the  decisions  to  the  extent  that,  if  the  estate  is  reported 
insolvent  by  the  domiciliary  administration,  the  creditors  in 
the  States  of  ancillary  administration  will  only  be  allowed  their 
debts  pro  rata  with  all  other  creditors.  They  will  not  be  paid 
in  full  at  the  expense  of  other  creditors  who  have  filed  their 
claims  in  the  domiciliary  courts.  ^^     This  is  certainly  a  liberal 

»  25  S.  C.  1,  60  Am.  Rep.  478. 

'  It  is  submitted  that  in  the  matter  of  interest  the  court  erred.  For  it 
is  generally  conceded  that  the  distribution,  even  if  it  occurs  in  the  State  of 
ancillary  administration,  should  be  made  in  accordance  with  the  law  of  the 
domicil.  See  cases  supra.  The  interest  the  legacy  was  to  bear  was  not  a 
question  of  administration,  but  of  distribution.  Or  if  it  be  taken  as  a  ques- 
tion of  the  interpretation  of  the  will,  it  is  well  settled  that  ambiguous  phrases 
in  a  will  ("interest")  should  be  interpreted  in  accordance  with  the  law  of 
the  testator's  domicil.     Post,  §  145. 

w  Rockwell  V.  Bradshaw,  67  Conn.  9,  34  Atl.  758,  761  ;  Parsons  v.  Lyman, 
20  N.  Y.  103. 

u  Dawes  v.  Head,  3  Pick.  (Mass.)  128;  Davis  v.  Estej',  8  Pick.  475. 


§  114  STATUS   OP  QUABDIAN8.  257 

doctrine,  but  it  would  seem  rather  to  overlook  the  real  basis  of 
all  ancillary  administration,  the  protection  of  home  creditors.^'^ 

After  the  completion  of  the  administration  of  the  decedent's 
estate,  both  ancillary  and  domiciliary,  follows  the  distribution 
of  the  residuum.  The  proper  law  governing  this  distribution, 
whether  it  is  made  in  the  State  of  ancillary  administration  or 
in  the  domicil,  is  the  lex  domicilii  of  the  decedent,  as  will  more 
fully  appear  hereafter." 

§  114.  Status  of  Guardians.  —  These  fiduciaries,  like  ad- 
ministrators, are  quasi-officers  of  the  law,  even  when  appointed 
by  the  individual,  as  in  the  case  of  testamentary  guardians. 
They  are  also  clothed  in  some  measure  with  a  like  dual  char- 
acter, being  created  partly  for  the  protection  of  the  ward  and 
partly  for  the  protection  of  third  persons  in  their  dealings  with 
the  ward.  Again,  the  status  of  guardianship,  like  that  of  ad- 
ministration, is  a  local  and  temporary  status,  not  a  permanent 
and  universal  one,  and  hence  the  powers  and  liabilities  of  the 
guardian  are  for  the  most  part  local  to  the  place  of  his  appoint- 
ment and  qualification. 

There  are  however  several  important  distinctions  between  the 
two  classes  of  fiduciaries.  In  the  first  place,  the  relation  of 
guardianship  applies  as  well  to  the  custody  and  control  of  the 
person  of  the  ward,  as  of  his  property,  while  the  status  of  ad- 
ministration is  applicable  only  to  property.  In  the  second 
place,  while  the  status  of  administration  is  created  chiefly  for 
the  benefit  and  protection  of  creditors  of  the  decedent,  and  other 
third  persons,  the  main  purpose  of  the  guardian  is  to  protect 
the  infant,  and  the  relation  towards  third  persons,  though  ex- 
istent and  recognized,  is  only  incidental.  In  the  third  place, 
as  respects  property  rights,  there  is  a  distinction  between  the 
two  classes  of  fiduciaries  with  regard  to  the  title  to  the  property 
held  by  them.  As  it  has  been  expressed  by  the  Supreme  Court 
of  the  United  States  in  a  leading  case  on  this  subject:  ^  ''  The 
case  of  a  guardian  differs  from  that  of  an  executor  or  trustee 

12  The  United  States  Supreme  Court  has  taken  the  opposite  view,  giving 
resident  creditors  precedence  in  such  cases.     Smith  v.  Bank,  5  Pet.  518,  527. 
»  Post,  §§  139  et  seq. 
1  Lamar  r.  Micou,  112  TJ.  S,  451. 

17 


258         STATUS  OP  GUARDIAN  —  WAKD'S   PERSON.      §  115 

under  a  will.  In  the  one  case  the  title  in  the  property  is  in 
the  executor  or  the  trustee;  in  the  other  the  title  in  the  prop- 
erty is  in  the  ward,  and  the  guardian  has  only  the  custody  and 
management  of  it,  with  power  to  change  its  investment.  The 
executor  or  trustee  is  appointed  at  the  domicil  of  the  testator, 
the  guardian  is  most  fitly  appointed  at  the  domicil  of  the  ward, 
and  may  be  appointed  in  any  State  in  which  the  person  or  prop- 
erty of  the  ward  is  found.  The  general  rule  which  governs  the 
administration  of  the  property  in  the  one  case  may  be  the  law 
of  the  testator's  domicil,  in  the  other  case  it  is  the  lex  domicilii 
of  the  ward." 

Whether  the  guardian  be  viewed  as  the  custodian  of  the 
ward's  person  or  of  his  property,  it  is  unquestionably  true  that 
he  is  "most  fitly  appointed  at  the  domicil  of  the  ward,"  for 
that  is  the  legal  situs  both  of  the  ward  and  of  his  personalty. 
The  guardian  there  appointed  is  regarded  generally  as  the  prin- 
cipal guardian,  to  whom  other  guardians  appointed  elsewhere 
are  answerable  and  ultimatelj'  accountable  with  respect  to  the 
ward's  property.^ 

Since  the  guardian,  in  the  absence  of  a  parent,  is  intrusted 
with  the  custody  of  the  ward's  person  and  the  care  of  his  edu- 
cation, as  well  as  with  his  property,  the  proper  law  governing 
the  relation  may  best  be  examined  with  reference  to  (1)  The 
care  of  the  ward's  person;   (2)  The  care  of  his  estate. 

§  115.  Status  of  Guardian  with  respect  to  Ward's  Person. 
—  The  legal  situs  of  the  ward  being  his  domicil,  the  guardian 
appointed  there  is  regarded  as  having  peculiar  powers  with  re- 
spect to  the  ward's  person.  Although  the  status  is  not  a  per- 
manent one,  and  other  guardians,  upon  occasion,  may  be 
appointed  in  other  States  where  the  ward  may  happen  to  have 
his  actual  situs,  even  when  his  property  is  not  in  question,  or 
though  he  have  no  property  there,  yet  the  authority  of  such 
a  guardian  is  always  local  only.  He  has  no  general  authority 
over  the  ward's  person  which  will  be  recognized  in  other  States.^ 

But  the  authority  of  the  domiciliary  guardian  over  the  ward's 

2  Lamar  v.  Micou,  112  U.  S.  452;  Earl  v.  Dresser,  30  Ind.  11,  95  Am.  Dec. 
660,  665.     See  Grimmett  v.  Witherington,  16  Ark.  377,  63  Am.  Dec.  &Q,  71. 
1  Johnstone  v.  Beattie,  10  CI.  &  F.  (H.  L.)  42  ;  Woodworth  v.  Spring, 


§  115      STATUS   OF  GUARDIAN  —  WARD's   PERSON.         259 

person,  even  when  the  latter  is  actually  in  another  State,  is  to  a 
certain  extent  recognized  everywhere.  Though  a  local  guar- 
dian has  been  appointed  in  the  State  of  the  ward's  actual  situs, 
it  is  believed  to  be  the  better  view  that  the  authority  of  the 
domiciliary  guardian  over  the  ward's  person  is  paramount,  un- 
less the  welfare  of  the  child  or  some  other  very  grave  reason 
intervenes.'  , 

The  English  case  of  Nugent  v.  Vetzera  *  strongly  illustrates 
the  respect  shown  to  the  authority  of  the  domiciliary  guardian 
even  when  the  ward  is  in  a  foreign  country.  An  Austrian 
subject  of  wealth  and  position  married  an  Englishwoman,  and 
had  ten  children.  The  husband  died,  and  the  mother  sent 
some  of  the  children  to  England  to  be  educated.  One  of  the 
daughters  married  an  Englishman.  The  mother  died,  and  a 
guardian  was  appointed  by  an  Austrian  court,  which  ordered 
that  the  children  should  be  brought  back  to  Austria  to  be  edu- 
cated. The  married  daughter  caused  herself  to  be  appointed 
the  guardian  of  the  children  in  England,  and  resisted  the  at- 
tempt to  take  them  back  to  Austria.  Both  guardians  were  fit 
and  suitable  persons,  and  the  children  desired  to  remain  in 
England.  But  the  English  court  held  that  it  would  be  con- 
trary to  comity  as  well  as  to  policy  to  refuse  the  domiliciary 
guardian  leave  to  remove  them,  as  it  would  tend  to  check  inter- 
course between  the  nations,  and  would  react  harshly  upon  Eng- 
lish infants  abroad. 

4  Allen  (Mass.),  321 ;  People  v.  Baker,  76  N.  Y.  78,  85, 32  Am.  Rep.  274.  See 
Kelsey  v.  Green,  69  Conn.  291,  37  Atl.  679  ;  Rogers  v.  McLean,  31  Barb. 
(N.  Y.)  304. 

2  Kraft  V.  "Wickey,  4  Gill  &  J.  (Md.)  332,  23  Am.  Dec.  r)69,  .571  ;  Towus- 
end  V.  Kendall,  4  Minn.  412,  77  Am.  Dec.  534,  537  ;  Woodwoith  v.  Spring, 
4  Allen  (Mass.),  321  ;  Wood  v.  Wood,  5  Pai.  Gh.  (N.  Y.)  596,  28  Am.  Dec. 
451  ;  Grimmett  v.  Witherington,  16  Ark.  377,  63  Am.  Dec.  66,  71  ;  In  re 
Rice,  42  Mich.  528,  4  N.  W.  284,  285  ;  Kelsey  v.  Green,  69  Conn.  291,  87 
Atl.  679 ;  Nugent  v.  Vetzera,  L.  R.  2  Eq.  704  ;  Dawson  v.  Jay,  3  DeG.  M.  & 
G.  764.  This  is  denied  outright  by  some  of  the  decisions,  which  hold  that  no 
foreign  guardian  has  any  control  whatever  over  the  person  or  property  of  his 
ward  in  another  State,  and  that  he  must  be  first  reappointed  there  as  guardian. 
Story,  Confl.  L.  §  499  ;  Johnstone  v.  Beattie,  10  CI.  &  F.  42  ;  Rogers  v. 
McLean,  31  Barb.  (N.  Y.)  304.     See  Hoyt  v.  Sprague,  103  U.  S.  613,  631. 

»  L.  R.  2  Eq.  704. 


260         STATUS   OF  GUARDIAN  —  WARD's   PERSON.      §  115 

In  Woodworth  v.  Spring,*  a  child  domiciled  in  Illinois,  and 
there  under  guardianship,  was  brought  to  Massachusetts  with 
the  consent  of  his  guardian,  by  an  aunt  who  there  caused 
herself  to  be  appointed  his  guardian,  without  the  knowledge 
or  consent  of  the  domiciliary  guardian.  The  latter  after- 
wards sought  to  recover  possession  of  the  child  by  a  habeas 
corpus  proceeding.  The  court,  while  denying  the  petition  on 
the  ground  that  such  a  course  was  best  for  the  child,  remarked : 
"But  it  by  no  means  follows  that  the  foreign  guardian's  claim 
to  the  care  of  the  child  and  the  control  of  his  person  and  the 
privilege  of  removing  him  from  this  State  is  to  be  absolutely 
denied.  On  the  contrary,  it  is  the  duty  of  the  courts  of  this 
State,  in  the  exercise  of  that  comity  which  recognizes  the  laws 
of  other  States  when  they  are  consistent  with  our  own,  to  con- 
sider the  status  of  guardian,  which  the  petitioner  holds  under 
the  laws  of  another  State,  as  an  important  element  in  determin- 
ing with  whom  the  child  is  to  continue.  It  would  not  do  to 
say  that  a  foreign  guardian  has  no  claim  to  his  ward  in  this 
State.  If  such  were  the  rule,  a  child  domiciled  out  of  the  State, 
sent  hither  for  purposes  of  education,  or  brought  here  by  force 
or  fraud,  or  coming  by  stealth,  might  be  emancipated  from  the 
control  of  his  rightful  guardian.  Kor  does  the  appointment  of  a 
guardian  in  this  State  operate  to  bar  any  decree  of  the  court  in 
favor  of  the  foreign  guardian." 

Kelsey  v.  Green  ®  was  a  contest  between  a  New  York  and  a 
Connecticut  guardian  over  the  custody  of  a  child  actually  located 
in  Connecticut.  The  child  had  lived  there  several  years  with 
its  mother  (now  dead).  The  father  and  the  family  had  lived  in 
New  York,  where  he  was  convicted  of  felony  and  confined  in 
the  penitentiary.  Upon  his  release  he  caused  a  man  in  New 
York  to  be  appointed  there  the  guardian  of  the  child.  This 
man,  claiming  that  he  was  the  domiciliary  guardian,  petitioned 
the  Connecticut  court  for  a  habeas  corpus  to  recover  the  posses- 
sion of  the  child  from  the  Connecticut  guardian.  The  court 
denied  the  petition  in  the  interests  of  the  child. 

In  conclusion,  it  may  be  not  amiss  to  state  that,  however 
confined  the  authority  of  a  domiciliary  guardian  may  be  ovei 

*  4  AUen  (Mass.),  321.  »  69  Conn.  291,  37  Atl.  679. 


§116      STATUS  OP  GUARDIAN  —  WARD'S  PROPERTY.      26:| 

the  person  of  his  ward  in  another  State,  the  parents  (natural 
guardians)  have  no  such  restricted  authority.  It  is  universally 
conceded  that  they  have  in  general  the  same  control  over  their 
children  when  abroad  that  they  have  at  home.® 

§  116.  Status  of  Guardian  with  respect  to  "Ward's  Prop- 
erty. —  So  far  as  concerns  the  ward's  property,  the  appointment 
of  a  guardian,  though  primarily,  is  not  solely  for  the  protection 
and  benefit  of  the  ward.  He  may  be  brought  into  business  re- 
lations with  third  persons,  whose  rights  the  law  must  protect. 
It  follows  therefore,  as  in  the  case  of  executors  and  adminis- 
trators, nowithstanding  the  general  legal  fiction  that  person- 
alty has  its  legal  situs  at  the  domicil  of  the  owner,  that  if  the 
ward  should  own  personalty  in  other  States,  before  any  one  can 
deal  with  the  property  there  as  guardian  of  the  ward,  he  must 
be  appointed  guardian  with  all  the  formalities  and  securities 
required  by  the  law  of  the  actual  situs  of  the  property.  It  is 
generally  admitted  that  the  appointment  of  a  guardian,  whether 
in  the  ward's  domicil  or  elsewhere,  gives  him  no  exterritorial 
authority  over  the  ward's  personal  property.^ 

And  if  such  is  the  rule  with  respect  to  personal  property, 
a  fortiori  is  it  the  rule  where  the  ward's  property  is  immovable. 
Here  it  is  well  settled  that  the  lex  situs  of  the  land  governs, 
and  that  law  usually  requires  a  guardian  to  qualify  there  before 
he  can  act  with  respect  to  land.'' 

6  Johnstone  v.  Beattie,  10  CI.  &  F.  42 ;  Townsend  v.  Kendall,  4  Minn.  412, 
77  Am.  Dec.  534.     But  see  ante,  §  83. 

1  Kraft  V.  Wickey,  4  Gill  &  J.  (Md. )  332,  23  Am.  Dec.  569,  571  ;  Rogers 
V.  McLean,  31  Barb.  (N.  Y.)  304  ;  Morrell  v.  Dickey,  1  Johns.  Ch.  (N.  Y.) 
153,  156  ;  Lamar  v.  Micou,  112  U.  S.  452 ;  Hoyt  v.  Sprague,  103  U.  S.  613, 
631.  There  is  some  tendency  to  give  effect  to  the  domiciliary  guardianship 
in  cases  where  citizens  of  the  situs  are  not  interested.  See  Lamar  v.  Micou, 
112  U.  S.  452  ;  Townsend  v.  Kendall,  4  Minn.  412,  77  Am.  Dec.  534  ;  Grim'- 
mett  V.  Witherington,  16  Ark.  377,  63  Am.  Dec.  66  ;  Earl  v.  Dresser,  30  Ind. 
11,  95  Am.  Dec.  660,  664-665. 

2  Whart.  Confl.  L.  §  268  ;  Hoyt  v.  Sprague,  103  U.  S.  613,  631  ;  Grim- 
mett  i;.  Witherington,  16  Ark.  377,  63  Am.  Dec.  66,  69  ;  Rogers  v.  McLean, 
31  Barb.  (N.  Y.)  304.  It  is  said  that  a  guardian  appointed  in  one  State  haa 
no  right  even  to  receive  the  profits  of  the  ward's  real  estate  located  elsewhere, 
unless  he  has  been  duly  appointed  guardian  in  the  State  where  the  land  lies, 
Story,  Confl.  L.  §  504.     See  Smith  v.  Wiley,  22  Ala.  396,  58  Am.  Dec.  262. 


262      STATUS  OF  GUARDIAN  —  WARD's  PROPERTY.      §  116 

But  after  the  claims  of  all  third  persons  are  disposed  of,  or  if 
none  arise,  the  general  principle,  as  between  guardian  and  ward, 
is  the  same  that  regulates  the  accountability  of  the  executor  or 
administrator  to  the  legatees  or  distributees.  The  law  of  the 
legal  situs  of  the  personalty  controls  questions  arising  solely 
between  guardian  and  ward;  that  is,  the  lex  domicilii  of  the 
owner  (the  ward). 

Thus,  in  Lamar  v.  Micou,'  the  guardian  was  appointed  in  New 
York,  while  the  wards  were  domiciled  in  another  State.  He 
invested  the  wards'  money  in  a  manner  that  was  lawful  under 
the  New  York  law,  but  rendered  him  responsible  for  its  safety 
under  the  law  of  the  wards'  domicil.  The  court  held  that  he  was 
accountable  according  to  the  latter  law.  In  the  course  of  the 
opinion,  Mr.  Justice  Gray  says :  ' '  The  form  of  accounting,  so 
far  as  concerns  the  remedy  only,  must  indeed  be  according  to 
the  law  of  the  court  in  which  relief  is  sought;  but  the  general 
rule  by  which  the  guardian  is  to  be  held  responsible  for  the  in- 
vestment of  the  ward's  property  is  the  lex  domicilii  of  the 
ward." 

If  the  ward  has  property  in  his  domicil,  it  is  generally  the 
duty  of  the  domiciliary,  rather  than  of  an  ancillary,  guardian 
to  maintain  him,  even  though  he  be  actually  in  another  State, 
and  a  fortiori,  if  he  is  in  the  State  of  his  domicil.*  But  if  he 
has  no  property  in  the  State  of  his  domicil,  so  that  the  principal 
guardian  is  unable  to  maintain  him,  an  ancillary  guardian  will 
then  be  permitted  to  give  or  send  him  funds  for  his  mainten- 
ance, subject  to  a  strict  accountability.® 

The  principles  regulating  the  powers,  duties,  and  liabilities 
of  the  committees  or  guardians  of  idiots,  insane  persons,  con- 
victs, etc.,  are  closely  analogous  to  those  controlling  the  ordi- 
nary relation  of  guardian  and  ward.  In  general,  however,  only 
the  property  interests  of  the  ward,  not  his  person,  are  intrusted 
to  this  class  of  fiduciary.* 

»  112  U.  S.  452. 

<  Kraft  V.  Wickey,  4  Gill  &  J.  (Md.)  332,  23  Am.  Dec.  569. 
'  Stephens  v.  James,  1  Mylne  &  Keene,  627. 

•  See  Rogers  v.  McLean,  31  Barb.  (N.  Y.)304;  Glaser  v.  Priest,  29  Mo. 
App.  1  ;   Schneller  v.  Vance,  8  La.  506,  28  Am.  Dec.  140. 


§  117  STATUS   OP   BBCEIVERS.  263 

§117.  Status  of  Receivers  —  In  General. — Receivers  are 
fiduciaries  appointed  by  a  competent  court  to  take  charge  of  and 
control  property  litigated,  pending  the  litigation.  The  appoint- 
ment of  such  a  fiduciary  is  usually  incidental  to  the  winding 
up  of  insolvent  partnerships  and  corporations.  Through  the  ap- 
pointment of  a  receiver  the  court  obtains  possession  and  control 
of  the  litigated  property,  preserves  it  from  waste  and  destruc- 
tion, secures  and  collects  the  proceeds  and  profits,  and  ulti- 
mately distributes  it  according  to  the  rights  and  priorities  of 
those  entitled. 

A  receiver  is  nothing  more  than  an  officer  or  creature  of  the 
court  that  appoints  him.  His  acts  are  the  acts  of  the  court, 
whose  jurisdiction  may  be  aided,  but  not  in  general  enlarged  or 
extended,  by  his  appointment.  His  powers  are  for  the  most  part 
only  coextensive  with  the  authority  of  the  court  conferring 
upon  him  his  official  character.^ 

It  will  be  observed  that  the  status  of  a  receiver  is  to  a  certain 
extent  assimilated  to  that  of  the  fiduciaries  already  discussed. 
But  the  dual  character  of  the  status  is  in  this  instance  mini- 
mized, if  not  altogether  lost.  His  appointment  is  principally, 
if  not  exclusively,  for  the  benefit  and  protection  of  creditors; 
only  in  a  very  slight  degree,  if  at  all,  do  the  original  owners 
of  the  property  profit  by  his  appointment. 

It  follows  therefore  that  the  receiver's  status  is  more  strictly 
local  than  that  of  either  administrator  or  guardian.  Even  here, 
however,  there  is  the  distinction  between  primary  or  principal 
and  ancillary  receiverships.  The  first  court  which  assumes 
jurisdiction  and  appoints  a  receiver  is  the  court  of  "  principal  " 
administration,  while  the  courts  of  other  States  may  appoint 
"ancillary  receivers"  of  the  property  there  situated.^  The 
position  of  a  receiver  may  be  likened  to  that  of  an  assignee  in 
involuntary  bankruptcy,  rather  than  to  that  of  an  administrator 
or  guardian.' 

Receivers,  being  mere  officers  of  the  court  appointing  them, 
it  will  be  readily  seen  that,  inherently  and  as  a  matter  of  right, 

1  Catlin  V.  Wilcox  Silver  Plate  Co.,  123  Ind.  477,  8  L.  R.  A.  62. 

2  Reynolds  v.  Stockton,  140  U.  S.  255. 

»  See  Booth  w.  Clark,  17  How.  32S2  ;   post,  §§  137, 138. 


264  STATUS   OP  BBCEIVERS.  §  117 

they  can  have  no  title,  power,  or  authority  beyond  the  limits  of 
that  court's  jurisdiction.* 

But  upon  principles  of  comity,  always  recognized  and  in 
general  acted  upon,  receivers  appointed  in  one  jurisdiction  are 
permitted  elsewhere  to  protect  interests  and  enforce  claims  of 
which  they  are  the  custodians.*  But  the  title  of  the  foreign  re- 
ceiver to  property  in  a  State  whose  residents  are  creditors  of  the 
insolvent  concern  will  not  be  recognized  there  as  against  them, 
at  least  if  they  are  not  parties  to  the  foreign  litigation  out  of 
which  the  receivership  grew,*  In  order  to  give  him  such  rights 
against  citizens  of  the  State  where  the  property  in  question  is 
located,  he  must  be  appointed  a  receiver  by  its  courts.' 

So,  if  the  recognition  of  the  foreign  receivership  would  con- 
travene the  policy  of  another  State,  it  will  not  be  recognized 
there.*  Nor  will  it  be  recognized,  even  as  against  non-resident 
creditors  who  have  attached  or  otherwise  secured  a  lien  upon  the 
property  before  it  was  actually  vested  in  the  receiver,*  unless 
perhaps  where  the  lien  creditor  is  a  citizen  of  the  same  State 
whose  court  has  appointed  the  receiver.^" 

Property  situated  in  the  State  of  his  appointment  becomes 
vested  in  the  receiver  by  the  very  fact  of  his  appointment,  with- 
out possession  thereof  actually  taken  by  him ;  but  as  to  property 
outside  of  that  State,  in  those  cases  where  the  authority  of  a  for- 


*  Catlin  V.  Wilcox  Plate  Co.,  123  Ind.  477,  8  L.  R.  A.  62  ;  Boulware  r. 
Davis,  90  Ala.  207,  9  L.  R.  A.  602,  6  Am.  St.  Rep.  189 ;  Booth  v.  Clark,  17 
How.  334. 

6  Boulware  v.  Davis,  90  Ala.  207,  9  L.  R.  A.  602,  6  Am.  St.  Rep.  189 ; 
Oilman  v.  Ketcham,  84  Wis.  60,  54  N.  W.  395,  397;  Pond  v.  Cooke,  45  Conn. 
126,  29  Am.  Rep.  668;  Willetts  r.  Waite,  25  N.  Y.  577;  Chicago,  etc.  R.  R. 
Co.   V.  Packet  Co.,  108  111.  317,  48  Am.   Rep.  557;  Cagill  v.  Wooldridge, 

8  Baxt.  (Tenn.)  580,  35  Am.  Rep.  716. 

«  Catlin  r.  Wilcox  Plate  Co.,  123  Ind.  477,  8  L.  R.  A.  62;  Humphreys 
V.  Hopkins,  81  Cal.  551,  6  L.  R.  A.  792 ;  Boulware  v.  Davis,  90  Ala.  207^ 

9  L.  R.  A.  602,  6  Am.  St.  Rep.  189  ;  Willetts  v.  Waite,  25  N.  Y.  577. 

'  See  Farmers'  Loan  &  T.  Co.  v.  Tel.  Co.,  148  N.  Y.  315,  31  L.  R.  A.  403, 
42  N.  E.  707. 

»  Boulware  v.  Davis,  90  Ala.  207,  9  L.  R.  A.  602,  6  Am.  St.  Rep.  189. 

»  Catlin  V.  Wilcox  Plate  Co.,  123  Ind.  477,  8  L.  R.  A.  62. 

"  Oilman  v.  Ketcham,  84  Wis.  60,  54  N.  W.  395.    See  post,  §  138. 


§  117  STATUS  OF  BECEIVBBS.  265 

eign  receiver  will  be  recognized,  he  will  not  be  regarded  as  hav- 
ing acquired  title  until  he  has  actually  gained  control  over  the 
property.  ^^ 

If,  being  vested  with  the  title  to  the  property  in  the  State  of 
his  appointment,  the  receiver  should  afterwards  remove  it  to 
another  State,  where  it  is  attached  by  creditors,  whether  resi- 
dent or  non-resident,  his  title  having  already  fully  vested  is 
superior.^' 

In  the  absence  of  conflicting  claims  of  creditors  in  other  juris- 
dictions, it  is  generally  conceded  that  a  foreign  receiver  may  deal 
with  the  insolvent's  property  as  if  it  were  in  the  State  of  his  ap- 
pointment.^' As  between  two  courts  of  concurrent  jurisdiction, 
such  as  a  Federal  court  and  a  State  court  in  the  same  State,  both 
having  jurisdiction  of  the  cause,  the  settled  rule  now  is  that  the 
court  first  obtaining  jurisdiction  of  the  res  is  entitled  to  retain 
it  until  the  litigation  is  terminated,  whether  or  not  a  receiver 
actually  has  possession  of  the  property.^*  Indeed  the  same  prin- 
ciple applies  in  other  cases  also  where  a  conflict  of  jurisdiction 
between  the  two  classes  of  courts  is  threatened. ^^ 

While  these  general  powers  are  usually  recognized  as  conferred 
upon  foreign  receivers,  it  will  sometimes  be  convenient,  and 
even  necessary,  to  appoint  ancillary  receivers  in  other  jurisdic- 

"  As  against  citizens  of  the  State  of  his  appointment,  he  stands  vested  with 
the  title  to  all  the  property,  even  that  which  is  outside  the  court's  jurisdiction. 
See  Oilman  v.  Ketcham,  84  Wis.  60,  54  N.  W.  395  ;  Osgood  v.  Maguire,  61 
N.  Y.  524 ;  Bagby  t;.  R.  R.  Co.,  86  Penn.  St.  291. 

12  Pond  V.  Cooke,  45  Conn.  126,  29  Am.  Rep.  668  ;  Cagill  v.  Wooldridge, 
8Baxt.  (Tenn.)  580,  35  Am.  Rep.  716;  Chicago,  etc.  R.  R.  Co.  v.  Packet 
Co.,  108  111.  317,  48  Am.  Rep.  557.  See  Humphreys  v.  Hopkins,  81  Cal.  551, 
6  L.  R.  A.  792  ;  Alley  v.  Caspari,  80  Me.  234,  6  Am.  St.  Rep.  185,  note. 

18  Willetts  V.  Waite,  25  N  Y.  577,  584. 

1*  Shields  v.  Coleman,  157  U.  S.  168  ;  Hamilton  v.  Chouteau,  6  Fed.  339. 
But  where  the  State  receivership  ceases  before  the  new  cause  of  action  arises, 
the  federal  courts  may  then  assume  jurisdiction.  Andrews  v.  Smith,  5  Fed. 
833.  And  where  a  receiver  of  a  State  court  acts  unlawfully  he  maybe  sued  in 
tort  in  a  federal  court.     Curran  v.  Craig,  22  Fed.  101. 

16  Thus,  in  Byers  v.  McAuley,  149  U.  S.  608,  it  was  held  that  property  in 
the  hands  of  an  administrator  appointed  by  a  State  court  could  not  be  di» 
tarbed  by  process  issued  from  a  federal  court. 


266  SUITS   BY  AND   AGAINST   RECEIVERS.  §  118 

tions  where  there  is  property  of  the  insolvent.^*  In  such  case, 
as  in  the  corresponding  case  of  administrators,  the  two  receivers 
are  not  in  privity,  and  a  judgment  obtained  against  one  in  the 
State  of  his  appointment  will  not  be  binding  upon  the  other." 
The  ancillary  receiver,  after  settling  with  the  creditors  within 
his  jurisdiction,  is  accountable  to  the  principal  receiver  for  the 
balance,  as  in  other  cases  of  administration. 

§  118.  Suits  by  and  against  Receivers.  —  A  receiver,  strictly 
speaking,  has  no  more  right  to  sue  in  a  foreign  State  than  to  do 
any  other  act.  But  if  a  suit  instituted  by  a  foreign  receiver  will 
not  work  a  detriment  or  an  injustice  to  the  citizens  of  the  forum, 
he  will  generally,  upon  principles  of  comity,  be  permitted  to  ap- 
peal to  its  courts.^ 

And  upon  going  into  a  foreign  jurisdiction,  or  sending  the 
trust  property  thither,  he  will  be  protected  by  the  courts  of  that 
State  in  his  right  to  the  property  which,  in  the  performance 
of  his  duty,  he  has  carried  or  sent  thither.  In  such  cases  the 
courts,  while  protecting  their  own  citizens  from  wrong,  will  not 
permit  them  to  infringe  the  comity  of  nations  and  themselves 
perpetrate  a  wrong  upon  the  receiver  and  the  court  that  has 
appointed  him.* 

In  respect  to  suits  instituted  against  receivers,  it  is  a  general 
rule  that  these  officials  cannot  be  sued  without  the  leave  of  the 
appointing  court.  A  suit  instituted  without  such  leave  is  a 
contempt  of  the  appointing  court,  which,  if  it  can  reach  the 
plaintiff's  person,  may  restrain  him  by  an  injunction  or  attach 

M  Farmers'  Loan  &  T.  Co.  v.  Tel.  Co.,  148  N.  Y.  315,  325,  31  L.  R.  A.  403, 
42  N.  E.  707;  Reynolds  v.  Stockton,  140  U.  S.  255. 
"  Reynolds  v.  Stockton,  140  U.  S.  255. 

1  Booth  V.  Clark,  17  How.  322  ;  Oilman  v.  Ketcham,  84  Wis.  60,  54  N.  W. 
395,  397;  Boulwarer.  Davis,  90  Ala.  207,  9  L.  R.  A  602,  6  Am.  St.  Rep.  189; 
Petersen  v.  Chemical  Bank,  32  N.  Y.  21,  43,  88  Am.  Dec.  298  ;  Toronto,  etc. 
Trust  Co.  V.  R.  R.  Co.,  123  N.  Y.  37,  47,  25  N.  E.  198  ;  Woodward  v.  Brooks, 
128  111.  222,  20  N.  E.  685  ;  Humphreys  v.  Hopkins,  81  Cal.  551,  6  L.  R.  A. 
792 ;  Catlin  r.  Wilcox  Plate  Co.,  123  Ind.  477,  8  L.  R.  A.  62. 

2  Pond  V.  Cooke,  45  Conn.  126,  29  Am.  Rep.  668  ;  Chicago,  etc.  R.  R.  Co. 
V.  Packet  Co.,  108  111.  317,  48  Am.  Rep.  557;  Cagill  v.  Wooldridge,  8  Baxt. 
(Teun.)  580,  35  Am.  Rep.  716.  But  see  Humphreys  v.  Hopkins,  81  Cal.  551, 
6  L.  R.  A.  792. 


§  118  SUITS   BY   AND  AGAINST   BBCEIVERS.  267 

him  for  contempt,  or  both,  or  may  render  the  proceedings  insti- 
tuted by  the  plaintiff  of  no  effect  within  its  jurisdiction.'  Such 
is  the  view  taken  by  the  courts  of  the  State  where  the  receiver 
is  appointed. 

Whether  or  not  a  foreign  court  will  take  the  same  view  if  a 
creditor  attempts  to  seize  the  property  of  the  insolvent  in  its 
jurisdiction  without  leave  of  the  court  appointing  the  receiver, 
is  a  matter  about  which  there  is  some  conflict  of  opinion.  It 
would  seem  quite  clear  that  such  foreign  court  would  not  regard 
the  appointment  of  the  receiver  in  cases  where  its  own  citizens 
attach  the  property  within  its  jurisdiction.* 

But  opinion  is  divided  upon  the  question  whether  citizens 
of  the  State  where  the  receiver  is  appointed  shall  be  per- 
mitted to  disregard  the  orders  and  jurisdiction  of  their  own 
home  courts,  and  without  their  leave  sue  the  receiver  in  another 
State.  Some  of  the  courts  take  the  view  that  want  of  leave  to 
sue  the  receiver  is  not  a  jurisdictional  defect;  but  that  such 
suit  may  be  maintained,  the  plaintiff  taking  the  risk  of  the 
appointing  court  being  able  to  reach  him  effectively  by  injunc- 
tion or  contempt  proceedings.^  But  the  more  recent  and  the 
better  opinion  is  in  favor  of  denying  to  foreign  courts  all  juris- 
diction of  suits  by  home  creditors  against  a  home  receiver  ap- 
pointed by  the  home  courts,  without  the  latter's  leave  first 
obtained.® 

•  Winswall  v.  Sampson,  14  How.  65;  Peale  v.  Phipps,  14  How.  368; 
Davis  V.  Gray,  16  Wall.  203  ;  Barton  v.  Barbour,  104  U.  S.  126 ;  Farmers' 
Loan  &  T.  Co.  v.  Tel.  Co.,  148  N.  Y.  315,  31  L.  R.  A.  403,  42  N.  E.  707. 

*  Catlin  V.  Wilcox  Plate  Co.,  123  Ind.  477,  8  L.  R.  A.  62  ;  Boulware  v. 
Davis,  90  Ala.  207,  9  L.  R.  A.  602,  6  Am.  St.  Rep.  189  ;  Booth  v.  Clark,  17 
How.  322;  Reynolds  v.  Adden,  136  U.  S.  353,  354.  It  is  believed  also  that 
the  same  rule  will  prevail  where  the  attaching  creditors  are  citizens  of  States 
other  than  that  where  the  receiver  is  appointed.  Cole  v.  Cunningham,  133 
U.  S.  107,  127.     See  post,  §  138. 

'  Kinney  v.  Crocker,  18  Wis.  74 ;  St.  Joseph,  etc.  R.  R.  Co.  v.  Smith,  19 
Kan.  225  ;  Allen  v.  Central  R.R.  Co.,  42  la.  683. 

6  Barton  v.  Barbour,  104  U.  S.  126,  128  ;  Peale  v.  Phipps,  14  How.  368  ; 
Kennedy  v.  R.  R.  Co.,  3  Fed.  97;  Melendy  v.  Barbour,  78  Va.  544,  558  ;  Gil- 
Dun  V.  ketcham,  84  Wis.  60,  54  N.  W.  395.     See  post,  §  138. 


268  SITUS  OF  PERSONALTY.  §  119 


PART   IV. 

SITUS  OF  PERSONAL  PROPEBTT. 

§119.  Preliminary  —  Outline  of  Discussion.  —  It  has  al- 
ready been  observed  that  the  legal  and  the  actual  situs  of  land 
or  immovable  property,  by  reason  of  the  quality  of  immova- 
bility, are  one  and  the  same.  By  no  fiction  of  law  nor  theory 
of  public  policy  can  land  be  regarded  as  constructively  located 
at  any  other  place  than  its  actual  situs.  It  naturally  follows 
that  every  question  affecting  the  title  to  land  must  be  governed 
by  the  law  of  the  place  where  the  land  is  situated.^ 

But  with  that  class  of  property  known  as  personal  property 
it  is  otherwise.  Tangible  chattels  are  movable,  and  may  be 
carried  or  sent  from  one  State  to  another,  and  therefore  may 
at  different  times  be  subjected  to  different  laws  at  the  will  or 
caprice  of  the  owner.  By  reason  of  its  movability,  personal 
property  cannot  be  said  to  have  any  fixed  and  definite  locality 
like  lands.  And  if  this  is  true  of  tangible  chattels,  how  much 
more  true  is  it  of  those  intangible  interests  known  as  choses  in 
action,  or  debts.  These  cannot  be  said  in  strictness  to  have 
any  situs  at  all. 

Yet  it  is  essential,  for  the  purposes  of  business,  that  some 
situs  should  be  assigned  to  all  these  classes  of  property.  They 
are  as  susceptible  of  being  dealt  with  in  the  ordinary  transac- 
tions of  life  as  real  property;  in  fact  transactions  with  respect 
to  them  are  much  more  frequent.  Such  transactions  must  be 
Pleasured  by  some  law,  and  that  law  can  only  be  furnished  by 
the  situs  of  the  property  and  of  the  transactions  relating  to  it. 

We  shall  devote  the  next  chapter  to  a*  consideration  of  the 
rules  by  which  to  determine  the  situs  of  tangible  chattels  and 

1  Ante,  §§  11,  12. 


§  119  SITUS   OP  PERSONALTY.  269 

debts,  and  in  the  succeeding  chapters  we  will  inquire  into  "the 
proper  law  "  governing  the  various  transactions  that  may  arise 
with  regard  to  personal  property,  including  (1)  voluntary  trans- 
fers of  personalty  inter  vivos ;  (2)  involuntary  transfers  of  per- 
sonalty inter  vivos  ;  (3)  transfers  by  succession  to  an  intestate's 
personal  estate;  (4)  transfers  by  will. 


270  SITUS   OF  TANGIBLE   CHATTELS.  §  120 


CHAPTER  X. 

SITUS  OF   CHATTELS  AND   OF  DEBTS. 

§  120.   Legal  and  Actual  Situs  of  Tangible  Chattels.  —  Be* 

cause  of  their  characteristic  of  movability,  it  has  been  a  time- 
honored  maxim  both  of  the  common  and  the  Roman  law,  arising 
from  considerations  of  general  convenience,  that  chattels  are  to 
be  presumed  in  legal  contemplation  to  follow  the  situs  of  the 
owner,  since  it  is  always  in  his  power  to  carry  or  have  them 
sent  thither.  This  maxim  is  expressed  in  the  phrase,  "Mobilia 
personam  sequuntury 

As  was  said  by  an  eminent  English  judge, ^  ''It  is  a  clear 
proposition,  not  only  of  the  law  of  England,  but  of  every 
country  in  the  world  where  the  law  has  the  resemblance  of 
science,  that  personal  property  has  no  locality.  The  meaning 
of  that  is,  not  that  personal  property  has  no  visible  locality,  but 
that  it  is  subject  to  that  law  which  governs  the  person  of  the 
owner.  With  respect  to  the  disposition  of  it,  with  respect  to 
the  transmission  of  it,  either  by  succession  or  act  of  the  party, 
it  follows  the  law  of  the  person." 

The  legal  situs  of  chattels  then  is  the  situs  of  the  owner. 
But,  as  has  been  shown  in  a  previous  section,^  the  owner  may 
possess,  for  different  purposes,  two  different  localities  at  the 
same  time.  For  some  purposes,  the  actual  situs  of  the  person 
at  a  given  time  will  furnish  the  applicatory  law  (though  he  re- 
sides in  another  State).  For  other  purposes,  the  legal  situs 
(or  domicil)  of  the  party  will  furnish  the  proper  law. 

It  will  be  remembered  also  that  the  actual  situs  of  the  person 
is  looked  to  whenever  the  transaction  to  whicli  the  law  of  his 
situs  is  applied  is  voluntarily  and  deliberately  entered  into  bjf 

1  Lord  Loughborough,  in  Sill  v.  Worswick,  1  H.  Bl.  690. 
«  Ante,  §  18. 


§  120  SITUS   OF  TANGIBLE  CHATTELS.  271 

him,  because  he  thereby  deliberately  submits  himself  to  the 
sovereignty  of  that  State,  which  is  complete  within  its  own 
territory,  and  which  a  just  and  proper  comity  demands  should 
be  respected  in  other  States.  But  if  the  matter  in  question  is 
the  result,  not  of  his  own  voluntary  and  deliberate  act,  but  of 
some  act  of  the  law,  if  his  participation  in  the  transaction  is 
involuntary,  it  is  his  legal  situs  or  domicil  that  provides  the 
governing  law,  not  his  actual  situs ;  for  without  his  deliberate 
and  voluntary  submission  to  the  temporary  sovereignty  of  an- 
other State,  his  domiciliary  law  follows  him,  whithersoever  he 
may  go.' 

It  follows,  therefore,  since  the  legal  situs  of  chattels  is  the 
situs  of  the  owner,  that  the  legal  situs  of  the  chattels  will  be 
either  the  actual  situs  of  the  owner  or  his  legal  situs  (or  domicil), 
according  as  the  particular  transaction  affecting  the  chattels  is  a 
voluntary  or  an  involuntary  transaction,  that  is,  according  as 
his  participation  therein  is  active,  deliberate  and  voluntary,  or 
passive  and  involuntary. 

Thus  where  the  owner  of  chattels,  being  domiciled  in  one 
State,  goes  into  another  State  and  there  voluntarily  enters  into 
a  transaction  disposing  of  them  to  another,  the  chattels,  for  the 
purposes  of  that  transaction,  are  to  be  regarded  in  general  as 
legally  situated  in  the  State  where  the  transaction  takes  place, 
whose  law  accordingly  will  govern  its  validity  and  effect.*     But 

8  Ante,  §  18. 

*  Crapo  V.  Kelly,  16  Wall.  610,  622  ;  Barnett  v.  Kinney,  147  U.  S.  476, 
481  ;  Langworthy  •».  Little,  12  Cush.  (Mass.)  109,  111 ;  Frank  v.  Bobbitt,  155 
Mass.  112,  29  N.  E.  209  ;  Williams  v.  Dry  Goods  Co.,  4  Okl.  145,  43  Pac. 
1148,  1150 ;  Emery  v.  Clough,  63  N.  H.  552,  4  Atl.  796  ;  Hornthall  v.  Bur- 
well,  109  N.  C.  10,  13  S.  E.  721,  722;  Long  v.  Girdwood,  150  Penn.  St.  413, 
24  Atl.  711,  23  L.  R.  A.  33  ;  Fowler's  Appeal,  125  Penn.  St.  388,  17  Atl. 
431 ;  Mackey  v.  Pettijohn,  6  Kan.  App.  57,  49  Pac.  636  ;  Guillander  v. 
Howell,  35  N.  Y.  657,  663  ;  Butler  v.  Wendell,  57  Mich.  62,  23  N.  W.  460, 
462  ;  Sullivan  v.  Sullivan,  70  Mich.  583,  38  N.  W.  472  ;  Weinstein  v.  Freyer, 
93  Ala.  257,  9  So.  285  ;  Marvin  Safe  Co.  v.  Norton,  48  N.  J.  L.  412,  57  Am. 
Rep.  566,  568,  7  Atl.  418  ;  Cronan  v.  Fox,  50  N.  J.  L.  417,  14  Atl.  119  ;  Dial 
V.  Gary,  14  S.  C.  573,  37  Am.  Rep.  737,  738  ;  State  v.  O'Neil,  58  Vt.  140,  5« 
Am.  Rep.  557 ;  Ames  Iron  Works  v.  Warren,  76  Ind.  512,  40  Am.  Rep.  258. 
Many  of  these  are  cases  where  the  owner  was  in  his  domicil  at  the  time  of  the 


272  SITUS  OP  TANGIBLE  CHATTBLS.  §  120 

for  the  purposes  of  involuntary  transactions  touching  the  chat- 
tels, matters  arising  by  operation  of  law,  without  the  consent  or 
against  the  will  of  the  owner,  as  transfers  by  marriage,  by  in- 
voluntary assignments  in  bankruptcy,  by  succession  to  a  dece- 
dent, etc.,  the  legal  situs  of  the  chattels  is  the  legal  situs  of  the 
owner  (his  domicil),  regardless  of  his  actual  situs,  and  hence 
the  law  of  his  domicil,  not  of  his  actual  situs  at  the  time  the 
transfer  occurs,  is  the  ** proper  law"  to  regulate  the  validity 
and  effect  of  such  transfer.' 

But  although  the  legal  situs  of  the  chattels  will  furnish  the 
"proper  law"  to  regulate  all  kinds  of  transactions  relating 
thereto,  yet  there  are  occasions  when  the  lex  fori  will  be  substi- 
tuted for  the  proper  law,  in  the  cases  where  the  general  excep- 
tions to  the  enforcement  of  a  foreign  law  apply.  In  such  cases 
the  forum  and  the  actual  situs  of  the  chattels  will  usually  be 
identical,  and  hence  it  comes  about  in  these  exceptional  cases 
that  the  transaction  may  after  all  be  governed  by  the  law  of  the 
actual  situs  of  the  chattels,  which  may  be  entirely  distinct  both 
from  the  legal  and  from  the  actual  situs  of  the  owner.  Indeed, 
these  exceptional  cases  arise  so  frequently  as  almost  in  some 
cases  to  obscure  the  operation  of  the  law  of  the  legal  situs  of  the 
chattels  altogether,'  leading  a  few  authorities  to  aver  that  the 

transaction,  so  that  his  legal  and  actnal  situs  coincide,  while  others  are  cases 
in  which  the  owner  was  abroad  when  he  dealt  with  the  chattels. 

^  Hairston  v.  Hairston,  27  Miss.  704,  61  Am.  Dec.  530  ;  Williams  v.  Saun- 
ders, 5  Coldw.  (Tenn.)  60,  76-77 ;  Union  Bank  v.  Hartwell,  84  Ala.  379, 
4  So.  156  ;  Paine  v.  Lester,  44  Conn.  196,  26  Am.  Rep.  442 ;  Russell  v. 
Hooker,  67  Conn.  24,  34  Atl.  711,  712  ;  Ames  Iron  Works  y.  Warren,  76  Ind. 
512,  40  Am.  Rep.  258,  259 ;  Graham  v.  Bank,  84  N.  Y,  393,  399,  38  Am. 
Rep.  528  ;  Cross  v.  Trust  Co.,  131  N.  Y.  330,  339  ;  Guillander  v.  Howell,  35 
N.  Y.  657,  658 ;  Petersen  v.  Chemical  Bank,  32  N.  Y.  21,  46,  88  Am.  Dec. 
298 ;  Speed  v.  May,  17  Penn.  St.  91,  55  Am.  Dec.  540  ;  Milne  v.  Moreton, 
6  Binn.  (Penn.)  353,  361,  6  Am.  Dec.  466  ;  Black  v.  Zacharie,  3  How.  483, 
514 ;  Sickles  w.  New  Orleans,  52  U.  S.  App.  147,  80  Fed.  868,  874. 

«  Green  v.  Van  Buskirk,  5  Wall,  307,  312  ;  Smith  v.  Bank,  5  Pet.  518, 
524  ;  Homthall  v.  Burwell,  109  N.  C.  10,  13  S.  E.  721,  722  ;  Speed  v.  May,  IJ" 
Penn.  St.  91,  94,  55  Am.  Dec.  540  ;  Paine  v.  Lester,  44  Conn.  1P6,  26  Am. 
Rep.  442,  444 ;  Edgerly  v.  Bush,  81  N.  Y.  199,  203  ;  Barth  v.  Backus,  140 
N.  Y.  230,  29  N.  E.  209  ;  May  v.  Wanuemacher,  111  Mass.  202,  209  ;  Ames 
Iron  Works  r.  Warren,  76  Ind.  512,  40  Am.  Rep.  258 ;  Toof  v.  Miller,  78 


§  120  SITUS   OF  TANGIBLE  CHATTELS.  273 

law  of  the  actual  situs  of  chattels  is  the  "  proper  law  "  to  govern 
transactions  relating  to  them.' 

But  cases  may  arise  in  which  it  becomes  impossible  to  assign 
an  actual  situs  to  chattels,  that  is,  a  situs  subject  to  any  par- 
ticular law.  In  such  cases,  the  chattel  is  relegated  to  its  legal 
situs  at  the  actual  or  legal  situs  of  the  owner.  Thus  a  ship 
upon  the  high  seas,  though  actually  situated  upon  the  seas,  can- 
not be  said  to  have  an  actual  situs  there  or  elsewhere,  in  the 
sense  here  used,  because  the  high  seas  are  subject  to  no  particu- 
lar law.* 

With  respect  to  chattels  aboard  a  ship  on  the  high  seas,  they 
are  generally  deemed  to  be  actually  located  in  the  country  to 
which  the  ship  belongs,  and  whose  flag  she  flies,  upon  the  well 
known  principle  of  international  law,  that  while  upon  the  high 
seas  even  a  merchant  vessel  is  a  floating  part  of  the  territory  to 
which  she  belongs.' 

But  as  to  the  vessel  itself,  when  upon  the  high  seas,  though 
for  purposes  of  international  law  it  is  to  be  regarded  as  part  of 
the  territory  of  the  State  to  which  it  belongs,  yet  from  the 
standpoint  of  a  mere  chattel,  property  owned  by  an  individual, 
it  is  believed  that  it  must  be  regarded  as  located  at  the  actual 
situs  or  at  the  legal  situs  (or  domicil)  of  the  owner,  according 
as  the  ^transaction  respecting  it  is  voluntary  or  involuntary, 
even  though  the  owner's  situs  be  a  State  other  than  that  wherein 
the  vessel  is  registered."     But  after  the  ship,  if  it  be  a  mer- 

Miss.  756, 19  So.  577;  Cronan  v.  Fox,  50  N.  J.  L.  417,  14  Atl.  119;  In  re 
Dalpay,  41  Minn.  532,  43  N.  W.  564. 

7  Whart.  Confl.  L.  §§  345,  346  ;  Guillander  v.  Howell,  35  N.  Y.  657.  See 
ante,  §  14. 

8  The  same  may  probably  be  affirmed  of  chattels  situated  in  a  barbarous  or 
unpopulated  territory,  subject  to  no  civilized  law.  See  Thuret  v.  Jenkins, 
7  Mart.  (La.)  318,  353,  12  Am.  Dec.  508. 

»  Whart.  Confl.  L.  §  356  ;  Crapo  v.  Kelly,  16  Wall.  610,  625.  In  the 
United  States,  whose  flag  covers  many  States,  the  State  where  the  vessel  is 
registered  seems  to  be  the  one  to  which  she  legally  belongs.  Whart.  Confl.  L, 
§357. 

w  Crapo  V.  Kelly,  16  Wall.  610,  622 ;  Thuret  r.  Jenkins,  7  Mart.  (La.j 
318,  353,  12  Am.  Dec.  508;  Moore  v.  Willett,  35  Barb.  (N.  Y.)  663,  665. 
But  see  Whart.  Confl.  L.  §  357. 

18 


274  SITUS  OP  DEBTS.  §  121 

chant  vessel,  has  arrived  in  a  port,  or  within  marginal  waters, 
it  (and  probably  its  cargo  also)  will  be  deemed  to  have  its  actual 
situs  in  the  country  in  whose  territory  it  is.^^ 

In  conclusion,  it  must  be  observed  that  the  actual  situs  of 
chattels  will  always  be  looked  to,  where  the  question  is  one  of 
jurisdiction  of  a  court  over  a  7'es.  It  is  the  actual,  not  the  legal, 
situs  of  property  that  gives  a  court  jurisdiction  to  pronounce 
a  judgment  or  decree  concerning  it.  Thus  the  court  of  the 
owner's  domicil  or  of  his  actual  situs  will  not  assume  jurisdic- 
tion, in  a  proceeding  in  rem,  over  chattels  actually  situated  in 
another  jurisdiction;  nor  will  a  court  of  a  State  where  a  chattel 
is  actually  situated  refuse  jurisdiction  of  such  a  proceeding  with 
respect  thereto,  merely  because  the  actual  or  legal  situs  of  the 

owner  is  elsewhere,  and  the  chattel  has  its  legal  situs  in  another 
State.i2 

§  121.  Iiegal  and  ActUcil  Situs  of  Debts.  —  As  has  been 
shown  in  the  preceding  section,  there  is  usually  no  difficulty  in 
ascertaining  the  actual  situs  of  tangible  chattels,  whenever  it 
becomes  necessary  to  discriminate  between  the  actual  and  legal 
situs  thereof.  A  tangible  chattel  occupies  space,  and  may  have 
a  definite  locality  of  its  own. 

But  with  respect  to  intangible  chattels  and  choses  in  action, 
such  as  bonds,  notes,  bills  of  exchange,  accounts,  and  debts  of 
all  sorts,  certificates  of  stock,  etc.,  different  principles  must  be 
applied.  Of  course,  the  material  evidence  of  the  right,  that  is, 
the  paper  on  which  the  promise  to  pay  is  written,  may  have  an 
actual  locality  :  it  may  occupy  space.  But  this  is  merelj'  the 
evidence  of  the  right,  the  value  of  which  lies  in  the  fact  that  it 
will  suffice  to  entitle  the  owner  to  the  valuable  property  it  rep- 
resents. The  value  of  the  property  itself  lies  in  the  right  of 
the  creditor  to  enforce  the  obligation  of  the  debtor  to  pay  the 
debt.  Such  intangible  rights  can  of  course  have  no  real  situs, 
since  they  exist  only  in  the  mind's  eye,  but  it  frequently  be- 

"  Crapo  V.  Kelly,  16  Wall.  610,  622 ;  Olivier  v.  Townes,  14  Mart.  (La.)  98. 

I'*  This  proposition  scarcely  needs  authority  for  its  support.  See  Rock- 
well V.  Bradshaw,  67  Conn.  9,  34  Atl.  758,  761  ;  Cronan  v.  Fox,  50  N.  J.  417, 
14  Atl.  119  ;  Reynolds  v.  Stockton,  140  U.  S.  255,  272  ;  Byers  v.  McAuley, 
149  U.  S.  608  ;  Stacy  v.  Thrasher,  6  How.  44,  68.     See  ante,  §  14. 


§  121  SITUS   OF   DEBTS.  275 

comes  necessary  to  assign  them  a  situs  somewhere,  in  order  to 
ascertain  the  law  properly  applicable  to  them. 

Before  laying  down  any  rules  for  the  determination  of  the 
situs  of  debts,  it  will  repay  us  to  notice  briefly  the  dual  mean- 
ing of  the  term  ''debt."  The  phrases  "chose  in  action"  and 
"debt"  are  often  used  as  synonymous.  But  they  are  rather 
correlative  than  synonymous.  They  represent  the  same  tiling, 
but  viewed  from  opposite  sides.  The  "chose  in  action  "  is  the 
right  of  the  creditor  to  be  paid,  while  the  "  debt "  is  the  obli- 
gation of  the  debtor  to  pay.  This  distinction  is  brought  out  in 
the  common  phrase,  "the  choses  in  action  and  debts  of  a  part- 
nership, upon  the  death  of  one  of  the  partners,  survive."  Here 
both  terms  are  used  in  the  same  sentence,  but  with  opposite 
meanings:  the  former  term  signifying  the  firm's  right  to  be 
paid  certain  sums  of  money,  the  latter  signifying  the  firm's 
obligation  to  pay  certain  sums  of  money.  Yet  the  term  "debt" 
is  often  used  indiscriminately  to  convey  both  these  ideas. ^ 
Much  confusion  has  resulted  from  the  failure  to  observe  this 
distinction,  and  perhaps  still  more  from  the  failure  to  notice 
carefully  the  essential  characteristics  of  these  several  con- 
ceptions. 

The  chose  in  action,  or  right  of  the  creditor,  is  a  personal 
right  which  adheres  to  him  wherever  his  situs  may  be.  It  may 
for  some  purposes  be  his  legal  situs  (or  domicil),  for  others  his 
actual  situs.  Just  as,  in  the  case  of  tangible  chattels,  though 
the  title  thereto  follows  the  owner,  and  its  transfer  will  be 
regulated  by  the  law  of  the  owner's  situs,  yet  his  or  his  trans- 
feree's ability  to  enforce  that  title  may  be  in  the  exceptional 
cases  determinable  by  a  different  system  of  law  should  the  chat- 
tels be  actually  situated  elsewhere;  so  also  in  the  case  of  debts, 
though  the  right  to  enforce  them  follows  the  owner  (the  creditor), 
and  his  transfer  is  therefore  to  be  governed  by  the  law  of  his 
situs,  actual  or  legal,  yet  his  or  his  transferee's  ability  to  en- 
force that  right  may  depend  upon  another  jurisdiction  and  sys- 
tem of  law,  if  he  has  to  resort  to  another  State  to  sue  the 
debtor.     In  other  words,  though  the  situs  of  the  creditor's  right 

1  See  Dial  v.  Gary,  14  a  C.  573,  37  Am.  Rep.  737.  740. 


276  SITUS  OP  DEBTS.  §  121 

follows  the  creditor,  the  situs  of  the  debtor's  obligation  follows 
the  debtor,  in  the  sense  that  the  debtor's  legal  obligation  exists 
only  in  the  State  where  it  can  be  enforced  against  him. 

The  debtor's  obligation  may  be  enforced  in  a  proceeding  in 
rem  in  any  State  where  he  has  property,  though  he  be  absent 
or  a  non-resident  ;  or  if  in  a  proceeding  in  personam,  the  debtor 
must  have  been  actually  found  within  the  court's  jurisdiction 
and  process  served  upon  him  there,  or  else  he  must  have  volun- 
tarily appeared.  It  is  not  essential  that  the  debtor's  obligation 
should  be  enforced  where  he  resides,  though  that  will  ordinarily 
be  the  place  of  its  enforcement. 

It  will  be  seen  therefore  that,  while  the  situs  of  the  creditor's 
right  (chose  in  action)  follows  the  creditor  and  corresponds  to 
the  legal  situs  of  tangible  chattels,  the  situs  of  the  debtor's 
obligation  follows  the  actual  situs  of  the  debtor,  or  of  his  prop- 
erty (in  case  of  a  proceeding  in  rem  to  enforce  it),  and  corre- 
sponds to  the  actual  situs  of  tangible  chattels. 

If  these  principles  be  kept  clearly  in  mind  there  will  be  no 
difficulty  in  solving  most  of  the  problems  that  present  them- 
selves involving  the  situs  of  debt,  a  subject  upon  which  the 
decisions  of  the  courts  present  the  utmost  confusion.  The 
analogy  between  the  situs  of  tangible  chattels  and  the  situs 
of  debts  is  complete  at  every  point.  The  legal  situs  of  a  debt, 
as  in  case  of  chattels^  is  the  actual  or  legal  situs  of  the  owner 
(the  creditor)  according  as  the  particular  transaction  in  question 
involves  the  creditor's  voluntary  or  tnvoluntary  participation 
thSrerilT     The  actual  situs  of  the  debt  at  a  particular  moment 


is_the  place_J8ghere  payment  thereof  mayat  that  moi 
enf nrcedjuwhetber^by  proceeding  in  rem  ovhj  proceedig,g_jn^ggr^ 
(sonam.  If  the  former  procedure  is  used,  the  actual  situs  of  the 
debt  will  be  the  actual  situs  of  the  res  subjected  to  its  payment ; 
if  the  latter,  it  will  be  the  domicil  of  the  debtor  or  some  other 
State,  according  as  he  is  sued  in  his  own  State  or  in  the  courts 
of  another  which  have  acquired  jurisdiction  over  him  by  due 
process  of  law. 

And,  as  in  the  case  of  tangible  chattels,  the  legal  situs  of  the 
debt  will  furnish  the  "proper  law"  governing  transactions 
touching  the  transfer  of  the  creditor's  right,  while,  in  the  ex- 


§  121  SITUS   OF   DEBTS.  277 

ceptional  cases  mentioned  in  the  second  chapter,  the  actual 
situs  of  the  debt  (and  the  forum)  will  be  substituted  therefor. 
The  actual  situs  of  the  debt  will  be  looked  to  also,  as  in  the 
case  of  chattels,  when  the  debt  is  the  res  in  a  proceeding  in  rem, 
the  question  being  whether  or  not  the  court  has  jurisdiction  of 
the  res. 

These  points  will  all  be  brought  out  more  fully  in  the  fol- 
lowing sections. 

It  will  be  observed  that  the  fact  that  the  debt  is  contracted  or  is 
made  payable  by  the  debtor  in  a  particular  State,  other  than  that 
of  his  domicil,  though  regarded  as  a  circumstance  of  importance 
by  some  of  the  decisions,*  in  reality  has  nothing  to  do  with  the 
question,  save  only  in  so  far  as  the  law  of  that  place  may  deter- 
mine whether  or  not  the  debt  is  valid.  It  has  no  bearing  upon 
the  situs  of  a  valid  debt.  That  is  independent  of  the  place  of 
contract.' 

Nor  does  the  mere  fact  that  the  debt  is  secured  upon  land  or 
chattels  by  mortgage,  deed  of  trust,  or  otherwise  affect  its  situs, 
save  only  where  the  debt  is  sought  to  be  recovered  by  proceed- 
ing in  rem  against  the  debtor's  property,  and  not  by  personal 
proceeding  against  the  debtor;  in  which  case  the  situs  of  the 
debtor's  obligation  (which  is  the  actical  situs  of  the  debt)  will 
be  the  actual  situs  of  his  property.* 

«  See  Dial  v.  Gary,  14  S.  C.  573,  37  Am.  Rep.  737,  741 ;  Osgood  v.  Ma- 
guire,  61  N.  Y.  524,  529  ;  111.  Cent.  R.  R.  Co.  v.  Smith,  70  Miss.  347,  12  So. 
461 ;  American  Ins.  Co.  v.  Hettler,  37  Neb.  849,  56  N.  W.  711  ;  Smith  v. 
Taber,  16  Tex.  Civ.  App.  154,  40  S.  W.  156  ;  Reimers  v.  Seatico  Mfg.  Co., 
70  Fed.  573. 

8  Hardware  Mfg.  Co.  v.  Lang,  127  Mo.  244  ;  Cross  v.  Brown,  19  R.  1. 220  ; 
33  Atl.  147;  Mashassuck  Felt  Mill  v.  Blanding,  17  R.  I.  297,  21  Atl.  538  ; 
Wyman  v.  Halstead,  109  U.  S.  656 ;  Union  Pac.  R.  R.  Co.  v.  Baker,  5  Kan. 
App.  253,  47  Pac.  563 ;  Neufelder  v.  Ins.  Co.,  6  Wash.  341,  33  Pac.  870  ; 
Owen  V.  Miller,  10  Ohio  St.  136,  75  Am.  Dec.  507 ;  East  Tenn.  R.  R.  Co.  v. 
Kennedy,  83  Ala.  462 ;  Pomeroy  v.  Rand,  157  111.  185,  41  N.  E.  636  ;  Berry 
V.  Davis,  77  Tex.  191,  13  S.  W.  978  ;  Ins.  Co.  v.  Portsmouth,  3  Met.  (Mass.) 
420  ;  Sturtevant  v.  Robinson,  18  Pick.  (Mass.)  175  ;  Harwell  v.  Sharp,  85  6a. 
124  ;  Rowland  v.  R.  R.  Co.,  134  Mo.  474,  36  S.  W.  29  ;  Ins.  Co.  v.  Chambers, 
53  N.  J.  Eq.  468,  32  Atl.  663. 

*  Vroom  V.  Van  Home,  10  Pai.  Ch.  (N.  Y.)  549,  555,  42  Am.  Dec.  94  ; 
Doolittle  V.  Lewis,  7  Johns.  Ch.  46,  11  Am.  Dec.  389  ;  Hoyt  v.  Thompson,  19 


278  SITUS   OF   DEBT  —  VOLUNTARY  TRANSFER.      §  122 

§  122.    Situs  of  Debt  for  Purposes  of  Voluntary  Transfer. 

—  The  term  "voluntary"  transfer  is  here  used  to  indicate  a 
transfer  by  the  act  and  agreement  of  the  creditor  himself,  by 
indorsement,  assignment,  or  otherwise,  in  contradistinction  to 
the  "  involuntary  "  transfer  which  takes  place  by  act  of  the  law,  as 
in  the  case  of  the  succession  to  the  property  of  a  decedent,  trans- 
fers of  the  wife's  personalty  to  the  husband  upon  marriage  (as 
under  the  common  law),  and  compulsory  assignments  for  the 
benefit  of  creditors  under  bankrupt  and  insolvent  laws. 

It  is  also  to  be  observed  that  the  voluntary  transfer  or  assign- 
ment of  a  debt,  which  passes  title  to  the  claim,  is  an  executed 
contract,  and  must  be  distinguished  carefully  from  the  execu- 
tory contract  which  usually  accompanies  it,  whereby  the  assignor 
engages  to  make  good  the  debt  to  the  assignee  upon  the  failure 
of  the  original  debtor.  This  executory  contract  is  governed  by 
different  principles,  which  will  be  considered  when  we  come  to 
investigate  the  proper  law  controlling  executory  contracts.  At 
present  we  shall  confine  our  attention  to  the  law  regulating  the 
executed  transfer  of  the  creditor's  chose  in  action. 

The  "voluntary"  transfer  of  choses  in  action  includes  not 
only  the  transfer  of  the  legal  title  to  negotiable  paper  by  indorse- 
ment, but  also  the  assignment  thereof  without  indorsement, 
the  assignment  of  choses  in  action  not  negotiable,  with  or  with- 
out indorsement,  and  the  voluntary  assignments  of  choses  in 
action  for  the  benefit  of  creditors. 

In  these  cases  there  is  no  dispute  as  to  the  general  principle 
that  the  law  of  the  legal  situs  of  the  chose  in  action  is  the 
"  proper  law  "  to  govern  its  transfer.  We  have  seen  that  the  legal 
situs  of  the  chose  in  action  is  the  situs  of  the  creditor.  But  is 
it  the  actual  or  the  legal  situs  (or  domicil)  of  the  creditor  ? 

Many  of  the  decisions  will  be  found  to  state  it  as  a  general 
proposition  that  the  lex  domicilii  of  the  creditor  (that  is  the  law 
of  his  legal  situs)  controls  voluntary  transfers  or  assignments  of 
choses  in  action.^ 

N.  Y.  207,  224  ;  Dial  v.  Gary,  14  S.  C.  673,  37  Am.  Rep.  737 ;  Van  Wyck  v. 
Read,  43  Fed.  716. 

1  Speed  V.  May,  17  Penn.  St.  91,  94,  55  Am.  Dec.  540  ;  Black  r.  Zacharie, 
3  How.  483  ;  Van  Wyck  r.  Read,  43  Fed.  716 ;  Catlin  v.  Wilcox  Plate  Co.,  12JJ 


§  122      SITUS   OF   DEBT  —  VOLUNTARY   TRANSFER.  279 

But  it  must  be  remembered  that  the  transfer  is  effected  by  the 
voluntary  and  deliberate  act  of  the  owner;  and  in  choosing  to 
enter  into  the  transaction  at  a  particular  place,  he  chooses  to 
submit  himself  to  the  sovereignty  and  laws  of  that  place.  He 
may,  and  usually  will,  make  the  transfer  in  his  domicil,  and  in 
such  case  the  law  of  his  domicil  will  control,  not  because  it  is 
the  law  of  his  domicil  however,  but  because  it  is  the  law  of  the 
place  where  the  transfer  is  made  (lex  loci  contractus).^  But  he 
may  choose  to  enter  into  the  transaction  in  a  State  other  than 
his  domicil,  under  a  law  different  from  that  of  his  domicil. 
There  can  be  little  doubt  that  freedom  of  locomotion  and  of  ac- 
tion, as  well  as  the  demands  of  trade  and  commerce,  require 
that  the  chose  should,  for  purposes  of  voluntary  assignment 
under  the  contract  of  the  owner,  be  generally  deemed  to  be  at  the 
actual  situs  of  the  creditor  at  the  time  of  the  assignment,  and 
that  the  transfer  should  be  regulated  by  the  law  of  the  place 
where  he  deals,  to  which  the  parties  must  be  regarded  as  sub- 
mitting themselves  for  that  purpose.  The  true  rule  therefore  is 
that  the  lex  loci  contractus  (which  may  or  may  not  be  identical 
with  the  lex  domicilii  of  the  creditor)  should  control  voluntary 
transfers.' 

Ind.  477,  8  L.  R.  A.  62  ;  Clark  v.  Peat  Co.,  35  Conn.  303 ;  Paine  v.  Lester, 
44  Conn.  196,  26  Am.  Rep.  442 ;  Fowler's  Appeal,  125  Penn.  St.  388,  17  Atl. 
431  ;  Long  v.  Girdwood,  150  Penn.  St.  413,  24  Atl.  711,  23  L.  R.  A.  33 ; 
Butler  V.  Wendell,  57  Mich.  62,  58  Am.  Rep.  329  ;  Woodward  v.  Brooks,  128 
111.  222,  20  N.  E.  685  ;  Askew  v.  Bank,  83  Mo.  366,  53  Am.  Rep.  590  ;  Birds- 
eye  V.  Underhill,  82  Ga.  142,  7  S.  E.  863  ;  Fuller  v.  Steiglitz,  27  Ohio  St. 
355,  22  Am.  Rep.  312.  But  in  all  these  cases,  as  well  as  in  others  laying 
down  the  same  rule,  the  assignment  was  made  by  the  creditor  in  the  State  of 
his  domicil.  Hence  the  legal  situs  and  the  actual  situs  of  the  assignor  are 
identical,  and  these  cases  prove  nothing.  This  is  an  instance  of  the  looseness 
of  phraseology  which  has  tended  so  much  to  add  to  the  intrinsic  difficulties  of 
this  branch  of  the  law. 

^  See  cases  cited  supra,  note  1. 

8  Dial  V.  Gary,  14  S.  C,  573,  37  Am.  Rep.  737,  738 ;  Hoyt  v.  Thompson, 
19  N.  Y.  207,  224 ;  Milne  v.  Moreton,  6  Binn.  (Penn.)  353,  369,  6  Am.  Dec. 
466  ;  Tyler  v.  Strang,  21  Barb.  (N.  Y.)  198  ;  Butler  v.  Wendell,  57  Mich.  62, 
58  Am.  Rep.  329 ;  Woodward  v.  Brooks,  128  111.  222,  20  N.  E.  685,  686  ; 
First  Nat.  Bank  v.  Walker,  61  Conn.  154,  23  Atl.  696  ;  Egbert  v.  Baker,  58 
Conn.  319,  20  Atl.  466;  May  v.  Wannemacher,  111  Mass.  202.     In  the  last 


280  8ITU8   OF  DEBT  —  VOLUNTABY  TRANSFER.      §  122 

But  in  ascertaining  the  "proper  law"  regulating  voluntary 
transfers  and  assignments  of  choses  in  action,  and  in  fixing  it 
as  the  lex  loci  contractus,  the  reader  must  not  overlook  the  ex- 
ceptions to  the  enforcement  of  the  proper  law,  already  so  fre- 
quently referred  to.*  In  these  cases,  it  will  be  remembered,  the 
lex  fori  will  be  substituted;  and  since  the  question  will  always 
arise  upon  an  attempt  to  enforce  the  debtor's  obligation  to  pay, 
the  lex  fori  and  the  actual  situs  of  the  debt  will  coincide. 

The  most  usual  instances  of  these  exceptions  are  those  which 
arise  from  danger  to  the  interests  of  the  forum  or  its  citizens, 
should  the  proper  law  be  enforced.  Hence,  if  the  assignment  of 
the  chose  in  action,  though  valid  where  made,  would  injuriously 
affect  the  interests  of  the  State  where  the  debt  is  sought  to  be 
enforced  (forum  and  actual  situs  of  the  debt),*  or  the  interests  of 
its  citizens,*  or  would  contravene  its  settled  policy  or  express 
statutory  provisions,'  or  would  be  contra  bonos  mores,^  or  if  such 
assignment  is  rendered  invalid  where  made,  as  a  penalty  for 
wrong-doing;'  in  all  these  cases,  the  law  of  the  actual  situs  of 
the  debt,  that  is,  the  actual  situs  of  the  debtor  when  sued  (in  a 
proceeding  in  personam),  being  also  the  forum,  will  be  substi- 
tuted for  the  "proper  law."    If  the  debt  be  sought  to  be  recovered 

three  of  these  cases  the  transfer  occuiTed  in  a  State  where  the  owneas  (or  some 
of  them)  were  not  domiciled.  The  situs  of  the  debts  assigned  was  held  to  be 
at  the  place  of  transfer.  In  the  last  two  cases  the  creditors  assigning  the  debts 
were  partners  living  in  different  States.  Much  difficulty  might  be  experienced 
in  such  cases  if  the  debt  were  placed  at  the  creditor's  domicil.  It  will  be  re- 
membered also  that  the  cases  cited  supra,  note  1,  are  not  against  this  position ; 
the  domicil  and  the  locus  contractus  were  in  those  cases  identical. 

*  Ante,  Chapter  IL 

*  Harrison  v.  Sterry,  5  Cr.  289, 299  ;  Holmes  v.  Remsen,  4  Johns.  Ch.  (N.  Y.) 
460,  488,  8  Am.  Dec.  581. 

«  Blake  r.  Williams,  6  Pick.  (Mass.)  286, 17  Am.  Dec.  372  ;  Milne  v.  More- 
ton,  6  Binn.  (Penn.)  353,  361,6  Am.  Dec.  466;  Speed  v.  May,  17  Penn.  St. 
91,  94,  55  Am.  Dec.  540  ;  Dial  v.  Gary,  14  S.  C.  573,  37  Am.  Rep.  737,  741. 

7  Savings  Bank  v.  Nat.  Bank,  38  Fed.  800  ;  Black  v.  Zacharie,  3  How.  483, 
614  ;  Atty.  Gen.  v.  Dimond,  1 C.  &  J,  356  ;  Atty.  Gen.  v.  Hope,  1  C.  M.  &  R. 
530,  8  Bligh,  44  ;  Atty.  Gen.  v.  Bouwens,  4  M.  &  "W.  171.  See  Story,  Confl. 
L.  §  383. 

8  See  Savings  Bank  v.  Nat.  Bank,  38  Fed.  800. 

»  See  Scoville  v.  Canfield,  14  Johns.  (N.  Y.)  338. 


§  123  SITUS   OP  DEBT  —  TAXATION.  281 

by  a  proceeding  in  rem,  the  actual  situs  of  the  res  (and  the 
forum)  will  be  the  actual  situs  of  the  debt. 

§  123.  Situs  of  Debt  for  Purpose  of  Taxation.  —  It  may 
perhaps  be  said  to  be  contrary  to  the  general  practice  for  a  State 
to  tax  the  tangible  chattels  of  a  non-resident  situated  within  its 
limits,  such  taxation  being  left  to  be  imposed  by  the  State  of  the 
owner's  domicil,  upon  the  theory  that  the  property  has  its  legal 
(though  not  its  acttial)  situs  at  the  owner's  domicil.*  But  tax- 
ation is  emphatically  an  instance  where  a  State  has  the  right  to 
throw  aside  all  fictions  and  look  at  things  as  they  are.  Accord- 
ingly States  frequently  tax  the  tangible  personalty  of  non-resi- 
dents when  actually  situated  within  their  borders.  In  such  cases, 
however,  the  State  of  the  actual  situs  only  imposes  the  tax  bur- 
den upon  the  property  within  its  jurisdiction.  It  cannot  con- 
stitutionally impose  a  personal  liability  upon  the  non-resident 
owner.* 

But  where  the  property  is  intangible,  such  as  debts,  more  dif- 
ficulty is  experienced  in  ascertaining  the  situs  where  it  may  be 
taxed.  The  general  practice  is  to  treat  debts  as  located,  for  pur- 
poses of  taxation,  at  the  creditor's  domicil,  and  there  is  no  doubt 
that  they  may  have  their  situs  there  for  that  purpose.*  On  the 
other  hand,  it  would  seem  that,  if  the  creditor  were  domiciled  in 
one  State  and  the  debtor  in  another,  there  should  be  no  reason 
why  the  latter  State  (which  is  the  situs  of  the  obligation  and 

1  Coolcy,  Taxation  (2(1  ed.)  372  ;  People  v.  Com're,  23  N.  Y.  224,  240  ; 
Com,  r.  B.  R.  Co.,  27  Gratt.  (Va.)  344 ;  Buck  v.  Miller,  147  Ind.  586,  45  N.  E. 
647,  648  ;  Thoradike  v.  Boston,  1  Met.  (Mass. )  242.  See  Borland  r.  Boston, 
132  Mass.  89,  42  Am.  Rep.  424. 

2  Mills  r.  Thornton,  26  111.  300,  79  Am.  Dec.  377;  Com.  r.  Gaines,  80  Ky. 
489 ;  Leonard  v.  New  Bedford,  16  Gray  (Mass.),  292 ;  Dow  v.  Sudbury,  5  Met. 
(Mass.)  73  ;  Buck  v.  Miller,  147  Ind.  586,  45  N.  E.  647,  648  ;  People  v.  Com'rs, 
23  N.  Y.  224,  240. 

8  Hunt  V.  Perry,  165  Mass.  287,  43  N.  E.  103  ;  Dykes  v.  Lockwood,  2  Kan. 
App.  217,  43  Pac.  268  ;  Bradley  v.  Bander,  36  Ohio  St.  28,  3  Am.  St.  Rep.  547; 
Com.  V.  R.  R.  Co.,  27  Gratt  (Va.)  344 ;  Herron  v.  Keran,  59  Ind.  472 ;  Ins. 
Co.  V.  Assessors,  47  La.  Ann.  1544,  18  So.  519 ;  Wilcox  i;.  Ellis,  14  Kan.  589, 
19  Am.  Rep.  107;  Baltimore  v.  Hussey,  67  Md.  112  ;  Ferris  v.  Kimble,  75  Tex. 
476  ;  State  Bank  v.  Richmond,  79  Va,  113  ;  Tax  on  Foreign  Held  Bonds,  Ifi 
Wall.  300. 


282  SITUS   OF   DEBT  —  TAXATION.  §  123 

the  actual  situs  of  the  debt)  cannot  lay  a  tax  upon  the  creditor's 
property  actually  situated  there,  namely,  the  debtor's  obligation 
to  pay,  provided  in  so  doing  it  does  not  impair  the  obligation  of 
contracts.  And  some  courts  have  upheld  such  taxation.*  But, 
strangely  enough,  the  general  trend  of  judicial  opinion  seems  to 
be  in  the  direction  of  regarding  such  taxation  as  unlawful,  upon 
the  ground  that  the  debtor  has  no  property  in  the  debt  which  can 
be  taxed.*  This  idea  would  certainly  seem  to  be  founded  on  a 
misapprehension.  It  is  conceded  that  the  debtor  hdis  no  property 
in  the  debt  belonging  to  the  creditor,  but  his  obligation  to  pay 
is  itself  valuable  property  belonging  to  the  creditor,  at  least  after 
the  debt  becomes  due  and  enforceable,  and  no  reason  is  perceived 
why  the  State  could  not  compel  the  debtor  to  pay  a  tax  thereon, 
crediting  him  with  the  amount  so  paid  on  his  debt.  But,  at  best, 
this  form  of  taxation  is  cumbersome,  and  has  been  but  little 
used,  most  States  leaving  debts  of  all  sorts  to  be  taxed  at  the 
domicil  of  the  creditor. 

Thus  shares  of  stock  in  a  corporation  are  usually  taxable  at 
the  domicil  of  the  owner,  not  of  the  corporation ;  ^  but  the  right 
of  the  State  of  the  corporation's  domicil  also  to  lay  a  tax  upon 
such  stock  is  admitted.'' 

In  States  whose  policy  is  to  tax  choses  in  action  at  the  dom- 
icil of  the  creditor,  a  question  has  sometimes  arisen  whether  this 
includes  negotiable  instruments.  Some  courts,  regarding  them 
as  actual  currency,  have  sustained  taxation  upon  them  where 

*  Bridges  «;.  Griffin,  33  Ga.  113 ;  Railroad  Co.  v.  Collector,  100  U.  S.  595  ; 
United  States  v.  R.  R.  Co.,  106  U.  S.  327 ;  Finch  v.  York  County,  19  Neb.  50, 

6  Cooley,  Taxation  (2d  ed.),  22 ;  citing  State  Tax  on  Foreign  Held  Bonds, 
15  Wall.  300,  319,  320  ;  Oliver  v.  Washington,  11  Allen  (Mass.),  268  ;  Com. 
».  R.  R.  Co.,  27  Gi-att.  (Va.)  344  ;  and  other  cases. 

6  Bradley  u.  Bander,  36  Ohio  St.  28,  38  Am.  Rep.  547;  Nashville  v.  Thomas, 
5  Coldw.  (Tenn. )  600  ;  Worth  v.  Ashe  Co.,  90  N.  C.  409.  And  this,  even  though 
a  tax  has  already  been  paid  on  the  stock  in  the  domicil  of  the  corporation.  See 
McKeen  v.  Northampton  Co.,  49  Penn.  St.  519,  88  Am.  Dec.  515  ;  Dwight 
V.  Boston,  12  Allen  (Mass.),  316  ;  Dyer  v.  Osborne,  11  R.  I.  321,  23  Am.  Rep. 
460  ;  Seward  v.  Rising  Sun,  79  Ind.  351. 

^  Tappan  v.  Bank,  19  Wall.  490 ;  Faxton  v.  McCosh,  12  la.  527;  American 
Coal  Co.  V.  Allegheny  County,  59  Md.  185.  But  see  Union  Bank  v.  Stat«, 
9  Yerg.  (Tenn.)  490. 


§  124  SITUS   OF   DEBT  —  ADMINISTRATION.  283 

the  paper  evidences  of  indebtedness  happen  to  be,  regardless  of 
the  locality  of  the  creditor's  residence.'  But  this  view  is  incon- 
sistent with  the  real  facts  and  with  general  principles,  and 
the  better  opinion  is  that  they  should  be  taxed  at  the  cred- 
itor's domicil." 

§  124.  Situs  of  Debt  for  Purpose  of  Administration.  —  In 
connection  with  the  subject  of  executors  and  administrators,  we 
have  seen  that  wherever  a  decedent's  assets  are  actually  situated 
in  a  State  other  than  his  domicil,  it  is  a  general  principle  that 
such  assets  must  be  first  of  all  administered  in  conformity  to  the 
lex  fori  and  lex  situs  of  the  property,  in  the  interest  of  the  citi- 
zens of  the  forum  and  actual  situs  of  the  property,  before  it  is 
to  be  regarded  as  subject  to  the  lex  domicilii  of  the  decedent. 
It  will  be  remembered  that  the  executor  or  administrator  must 
qualify  anew  in  every  jurisdiction  where  the  deceased  has  left 
assets,  and  that  until  such  qualification  no  act  of  the  domiciliary 
administrator  will  be  of  any  effect,  as  to  property  situated  in 
another  State,  at  least  if  there  are  any  citizens  of  that  State 
who  may  be  injured  by  such  action.^ 

Little  diflSculty  is  experienced  in  applying  these  principles 
when  the  assets  are  tangible  chattels,  capable  of  occupying 
space,  and  therefore  possessing  an  actual  situs  of  their  own. 
But  the  ascertainment  of  the  situs  of  a  debt  for  these  purposes 
has  given  the  courts  some  trouble,  which  has  arisen  in  large 
measure  from  the  failure  to  observe  the  distinction  between  the 
legal  and  the  actual  situs  of  debts,  already  adverted  to.* 

Thus  we  find  the  courts  divided  in  opinion  upon  the  question 
whether  an  executor  or  administrator  appointed  in  the  State 
of  a  deceased  creditor's  domicil  can  there  assign  the  debt  to  a 
third  person  so  as  to  enable  him  to  sue  the  debtor  in  another 
State. 

8  Redmond  v.  Rutherford,  87  N.  C.  133;  Wilcox  v.  Ellis,  14  Kan.  588,  19 
Am.  Rep.  107  ;  Poppleton  v.  Yamhill  County,  18  Oregon,  377. 

9  State  Tax  on  Foreign  Held  Bonds,  15  Wall.  300  ;  Boyd  v.  Selma,  96  Ala. 
144,  11  So.  393  ;  State  Bank  v.  Richmond,  79  Va.  113;  New  Orleans  v.  Ins. 
Co.,  30  La.  Ann.  876,  31  Am.  Rep.  232  ;  Lanesborough  v.  Berkshire  County, 
131  Mass.  424. 

1  Ante,  §§  105  et  seq. 

a  See  Wyman  v.  Halstead,  109  U.  S.  656. 


284  SITUS   OP   DBBT  —  ADMINISTRATION.  §  124 

In  Dial  v.  Gary,'  it  was  held  that  the  assignee  could  not  sue, 
since  that  would  he  practically  to  permit  a  foreign  administrator 
to  administer  upon  the  decedent's  property  in  South  Carolina, 
without  having  qualified  therein  or  administered  there,  whereby 
its  own  citizens  might  be  injured. 

On  the  other  hand,  in  Petersen  v.  Chemical  Bank,*  the  debtor 
was  sued  in  his  domicil  (New  York)  by  the  assignee  of  an  ad- 
ministrator appointed  in  Connecticut,  the  creditor's  domicil,  and 
it  was  held  he  was  entitled  to  recover.  In  this  case,  however, 
the  court  states  that  there  were  no  creditors  of  the  deceased  in 
New  York,  and  that  there  was  no  motive  for  forbidding  the 
withdrawal  of  the  assets.* 

Upon  principles  already  noted,  the  law  of  the  actual  situs  of 
the  debt  (and  the  forum)  will  govern  the  administration,  so  long 
as  the  enforcement  of  that  law  is  necessary  to  the  protection  of 
its  citizens.  And  the  actual  situs  of  the  debt  in  the  cases  given 
above  was  the  domicil  of  the  debtor,  for  that  was  where  his  obli- 
gation to  pay  was  sought  to  be  enforced.  No  assignment  of  the 
debt  therefore  in  its  legal  situs  (the  creditor's  domicil)  could 
operate  to  pass  title  to  a  debt  actually  situated  in  another  State 
(the  debtor's  domicil)  any  more  than  the  transfer  of  a  tangible 
chattel  under  similar  circumstances.  To  this  extent  therefore 
the  South  Carolina  decision  was  clearly  correct."  But  if  there 
are  no  creditors  of  the  decedent  in  the  forum  and  actual  situs, 
the  reason  for  looking  to  the  actual  situs  of  the  debt  ceases,  and 
the  proper  law  (lex  domicilii)  will  once  more  be  applicable.' 
In  this  aspect  of  the  case,  the  New  York  decision  was  also 
correct. 

It  has  been  said  that  the  first  branch  of  the  rule  does  not 
apply  to  negotiable  instruments,  and  that  an  administrator  may 

«  14  S.  C.  573,  37  Am.  Rep.  737. 

*  82  N.  Y.  21,  88  Am.  Dec.  298. 

'  32  N.  Y.  48.  The  court  seemed  to  consider  that  fact  of  little  importance, 
but  it  is  submitted  that  it  is  the  point  upon  which  the  decision  should  turn. 

•  See  also  Stearns  ».  Bumham,  5  Greenl.  (Me.)  261 ;  Vroom  v.  Van  Home, 
10  Pai.  Ch.  549,  42  Am.  Dec.  94  ;  Hall  v.  Harrison,  21  Mo.  227,  64  Am. 
Dec.  225.     But  see  Harper  v.  Butler,  2  Pet.  239. 

T  Petersen  v.  Chemical  Bank,  32  N.  Y.  21,  48,  88  Am.  Dec.  298 ;  Harvey 
V.  Richards,  1  Mason,  C.  C.  380,  413. 


§  125  SITUS   OF   DEBT  —  GARNISHMENT.  28& 

freely  dispose  of  them,  though  the  debtor  lives  in  another  State, 
since  to  refuse  the  assignee  the  right  to  sue  the  debtor  upon 
such  a  note  would  put  a  stop  to  its  negotiability.* 

Another  point,  upon  which  the  courts  are  divided,  the  solu- 
tion of  which  is  dependent  upon  the  actual  situs  of  a  debt,  is 
whether  an  administrator  may  sue  a  debtor  of  the  estate  domi- 
ciled elsewhere,  but  whom  he  finds  transiently  in  the  State  of 
his  appointment."  Since,  as  we  have  seen,  the  actual  situs  of  a 
debt  is  any  State  where  the  obligation  to  pay  may  be  enforced 
by  suit,  and  since  in  this  case  the  debtor  has  come  within  the 
jurisdiction  of  the  administrator,  there  is  no  doubt  that,  stricto 
jure,  he  is  entitled  to  sue  him  there.  The  case  is  analogous  to 
that  of  a  tangible  chattel  of  a  decedent,  to  which  one  admin- 
istrator of  the  deceased  is  entitled,  transiently  passing  through 
the  State  of  another  administrator  of  the  same  decedent.  There 
can  be  no  doubt  that  the  administrator  of  the  latter  State  may 
lay  hold  of  such  property  for  the  benefit  of  its  own  resident 
creditors.  But  such  action  would  appear  to  be  closer  akin  to 
robbery  than  to  justice,  and  would  hardly  comport  with  the 
comity  that  should  regulate  the  relations  of  States  to  each 
other." 

If  there  are  no  creditors  of  the  deceased,  or  the  administration 
has  been  completed,  the  creditors  paid  off,  and  the  only  thinr* 
remaining  is  to  distribute  the  residuum,  the  actual  situs  of  the 
debt  ceases  to  furnish  the  applicatory  law,  and  its  legal  situs  (in 
this  case  the  legal  situs,  or  domicil,  of  the  creditor)  resumes  its 
sway." 

§  125.  Situs  of  Debt  for  Purpose  of  Attachment  and  Qar- 
nishment.^  —  Perhaps  on  no  one  point  has  there  been  a  greater 

»  Story,  Confl.  L.  §§  258,  259 ;  Petersen  v.  Chemical  Bank,  32  N.  Y.  21, 
42,  88  Am.  Dec.  298.  Here  there  is  a  conflict  of  policies,  the  relative  impor* 
tance  of  which  the  courts  of  the  forum  must  decide. 

'  See  Merrill  v.  Ins.  Co.,  103  Mass.  245  ;   Stevens  v.  Gaylord,  11  Mass. 
256 ;  Hall  v.  Harrison,  21  Mo.  227,  64  Am.  Dec.  225,  227. 
w  See  Crouch  v.  Dabney,  2  Gratt.  (Va.)  415. 

"  Mayo  V.  Equitable  Society,  71  Miss.  590,  15  So.  791 ;  Petersen  v.  Chem. 
ical  Bank,  32  N.  Y.  21,  88  Am.  Dec.  298  ;  Harvey  v.  Richards,  1  Mason, 
C.  C.  380,  413.    See  Dawes  v.  Boylston,  9  Mass.  337. 

*  In  the  preparation  of  this  section,  the  writer  has  been  much  aided  by 


286  SITUS   OF  DEBT  —  OABNISHMENT.  §  125 

variety  of  judicial  opinion  than  upon  the  topic  now  to  be  exam» 
ined.  Briefly,  the  question  may  be  thus  stated:  A  of  New  York 
owes  B  of  Massachusetts  $1000.  B  owes  C  of  New  York  or 
Virginia  a  like  sum.  B  has  no  property  save  A's  debt.  C  de- 
sires to  sue  out  an  attachment  against  B  in  New  York,  and  to 
summon  A  before  the  New  York  courts  upon  process  of  garnish- 
ment. Have  the  New  York  courts  jurisdiction  of  the  proceeding, 
B  being  a  non-resident  and  not  personally  before  the  court  ? 

The  attachment  proceeding  being  in  rem,  and  not  in  per- 
sonam, if  the  res  is  before  the  New  York  courts,  it  is  not  neces- 
sary that  the  owner  of  the  property  seized  should  be  within  their 
jurisdiction.  The  fact  that  he  is  a  non-resident  is  immaterial.' 
Hence  in  these  cases  the  sole  question  to  be  determined  is  this  : 
Is  the  res  within  the  jurisdiction  of  the  attaching  court  ?  The 
res  is  the  debt  due  to  B  by  A,  and  hence  we  are  confronted 
with  the  pregnant  question,  what  is  the  situs  of  A's  debt  to 
B?  Has  it  its  situs  with  the  creditor  (B)  at  his  domicil,  or  at 
the  domicil  of  the  debtor  (A),  or  at  the  actual  sihis  of  B  or  A, 
respectively  ?  If  the  debt  is  to  be  regarded  as  with  the  creditor 
(B),  the  fact  that  A  is  within  the  jurisdiction  of  the  court  will 
be  of  no  avail.  But  if  the  debt  is  with  the  debtor,  then  the 
presence  of  A  within  the  jurisdiction  is  all  important,  and  the 
locality  of  B  is  immaterial. 

Owing  to  the  great  confusion  that  has  existed  in  respect  to 
this  subject,  it  has  frequently  happened  that  a  debtor,  who  in 
one  jurisdiction  has  been  garnished  in  attachment  proceedings 
and  been  compelled  to  pay  his  debt  to  his  creditor's  creditor, 
has  been  subsequently  compelled  in  another  jurisdiction  to  pay 
the  same  debt  over  again  to  another  creditor  of  his  creditor,  on 
the  ground  that  the  first  court  had  no  jurisdiction  of  the  res. 
Such  a  state  of  affairs  is  a  disgrace  to  the  law,  calling  for  a 
speedy  recognition  of  some  principle  upon  which  the  question 
of  jurisdiction  may  be  determined  once  for  all. 

Many  theories  have  been  advanced  by  the  various  courts  as  to 

reference  to  an  able  thesis  on  the  subject  by  J.  L.  Templeman,  Esq.,  formerly 
a  student  of  the  University  of  Virginia,  now  a  practitioner  in  Butte,  Montana 
For  the  assistance  thus  given,  grateful  acknowledgment  is  here  made, 
a  Ante,  §§  85,  86  ;  Pennoyer  v.  Neff,  96  U.  S  714. 


§  125  SITUS   OP  DBBT  —  GAENISHMENT.  287 

tiLe  situs  of  debts  under  circumstances  like  these,  some  of  the 
more  important  of  which  will  now  be  examined  briefly.  In 
considering  the  merits  of  these  various  theories,  one  important 
principle,  already  discussed,  must  be  constantly  borne  in  mind: 
that  principle  is,  that,  for  purposes  of  ascertaining  the  jurisdic- 
tion of  a  court  over  a  res,  the  actual  situs  of  the  res  is  re- 
garded, not  its  legal  or  constructive  situs.* 

^irst  Theory.  —  Many  of  the  courts  have  declared  in  favor  of 
the  extreme  view  that  the  situs  of  a  debt  is  at  the  domicil  of 
the  creditor,  and  that  it  cannot  be  attached  in  another  State  for 
want  of  jurisdiction  over  the  res.  In  the  example  above  given, 
these  courts  would  hold  that  A's  debt  to  B  could  only  be  at- 
tached by  C  in  Massachusetts  (B's  domicil).*  This  view  dis- 
regards altogether  the  dual  nature  of  debt,  which,  while  placing 
the  creditor's  Hffht  to  sue  (or  chose  in  action)  with  the  creditor, 
places  the  debtor's  obligation  to  pay  and  the  creditor's  abiUtij  to 
exact  payment  with  the  debtor.  In  other  words,  though  the 
question  is  one  of  jurisdiction  over  a  res,  these  courts  dis- 
regard the  actual  situs  of  the  property,  and  look  only  to  its 
legal  or  constructive  situs.  This  view  would  clearly  seem  to  be 
erroneous. 

Second  Theory  —  Legislative  Fiat.  —  Another  line  of  cases, 
while  recognizing  the  same  general  principle  as  those  holding 
the  first  theory,  yet  for  purposes  of  garnishment,  in  order  to  do 
effectual  justice,  find  it  necessary  to  resort  to  phraseology  which, 
if  interpreted  literally,  seems  wholly  unjustifiable.  These  cases 
hold  that  a  debt  for  most  purposes  has  its  situs  at  the  creditor's 
domicile  but  for  purposes  of  garnishment  a  State  may  hy  legisla- 
tive fiat  fix  its  situs  at  the  debtor's  domicil.* 

«  Ante,  §§  14,  120. 

4  Railroad  Co.  v.  Nash,  118  Ala.  477,  23  So.  825;  Railroad  Co.  v.  Chum- 
ley,  92  Ala.  317,  9  So.  286;  Bucy  v.  R.  R.  Co.  (Miss.),  22  So.  296; 
Railroad  Co,  v.  Smith,  70  Miss.  344,  12  So.  461 ;  Railroad  Co.  v.  Sharritt,  48 
Kan.  375,  23  Pac.  430;  Lovejoy  v.  Albee,  33  Me.  414,  54  Am.  Dec.  630; 
Smith  V.  Eaton,  36  Me.  298,  58  Am.  Dec.  746;  Central  Trust  Co.  v.  R.  R. 
Co.,  68  Fed.  685  ;  Mason  v.  Beebee,  44  Fed.  556.  See  also  Railroad  Co.  v. 
Maggard,  6  Colo.  App.  85,  39  Pac.  985  ;  Caledonia  Ins.  Co.  v.  Wenar  (Tex. 
Civ.  App.),  34  S.  W.  385. 

*  Williams  v.  IngersoU,  89  N.  Y.  523  ;  Douglas  v.  Ins.  Co.,  138  N.  Y.  208  : 


288  SITUS  OF  DEBT  —  GARNISHMENT.  §  125 

It  can  hardly  be  supposed,  however,  that  the  courts  mean  to 
say  that  a  legislature,  by  mere  decree,  can  cause  a  thing  to  be 
situated  where  in  fact  it  is  not.  All  that  is  meant  probably  is 
that,  though  ordinarily  the  law  will  adopt  the  fiction  that  debts 
are  located  at  the  situs  of  the  creditor,  this  fiction  may  be  disre- 
garded, and  the  actual  situs  of  the  obligation  substituted  there- 
for, whenever  policy  may  require  it.  Under  this  view,  the 
rules  governing  the  situs  of  debts  are  assimilated  to  those  gov- 
erning the  situs  of  tangible  chattels,  and  the  theory  becomes 
identical  with  the  fourth  theory  hereafter  mentioned.' 

Third  Theory  —  Another  theory  (which  may  be  denomi- 
nated the  fund  theory)  distinguishes  between  the  chose  in  action 
(following  the  creditor)  and  the  money  owing  (in  the  hands  of 
the  debtor),  which  constitutes  a  fund  held  by  the  debtor  but  be- 
longing to  the  creditor,  which  fund  is  the  res  in  the  attachment 
proceeding;  holding  that,  since  the  debtor's  funds  are  to  be  pre- 
sumed to  be  at  his  domicil,  the  attachment  can  only  issue  there. 
This  theory  rests  upon  the  idea  that  the  creditor  has  the  right 
to  recover  of  the  debtor  a  certain  specific  sum  of  money,  and 
that  by  his  attachment  the  attaching  creditor  becomes  subro- 
gated to  this  right,  and  may  proceed  to  recover  the  debt  in  the 
place  of  the  original  creditor,  and  in  the  same  jurisdiction.' 
It  is  submitted,  however,  that  this  view  is  fallacious,  in  that  it 
requires  as  a  basis  one  of  two  suppositions  (or  both)  :  (1)  That 
there  is  specific  property  belonging  to  the  original  creditor 
now  in  the  debtor's  hands ;  (2)  That  the  court,  which  seizes  the 
right  of  the  original  creditor  to  sue  and  turns  it  over  to  the 
attaching  creditor,  has  jurisdiction  of  that  right,  for  otherwise 
it  could  not  attach  it.     But  it  is  admitted  by  all  the  authorities 

Swedish-American  Bank  v.  Bleeker,  72  Minn.  383,  75  N.  W.  740,  71  Am.  St. 
Rep.  492  ;  Bragg  v.  Gaynor,  85  Wis.  468,  55  N.  W.  919  ;  Morawetz  v.  Sun 
Ins.  Office,  96  Wis.  175,  71  N.  W.  109;  Renier  r.  Huilbut,  81  Wis.  24,  50 
N.  W.  783 ;  Reimers  v.  Mfg.  Co.,  70  Fed.  673. 

«  See  Mooney  v.  Buford,  72  Fed.  38 ;  Railroad  Co.  v.  Nash,  118  Ala.  477, 
23  So.  325 ;  National  Ins.  Co.  v.  Chambers,  53  N.  J.  Eq.  468,  32  Atl.  663  ; 
Lancashire  Ins.  Co.  v.  Corbett,  165  111.  592,  46  N.  E.  631. 

''  This  seems  to  be  in  part  the  theory  upon  which  Mr.  Waples  bases  his  in- 
teresting treatise  on  the  Situs  of  Debt.  Waples,  Debtor  and  Creditor.  See 
Berry  v.  Davis,  77  Tex.  191,  13  S.  W.  978. 


§  125  SITUS  OP  DEBT  —  GARNISHMENT.  289 

that  the  right  of  the  original  creditor  to  sue  is  with  the  creditor 
(who  is  not  within  the  jurisdiction  of  the  courts  of  the  debtor's 
domicil).  And  it  must  be  conceded  also  that  there  is  with  the 
debtor  no  specific  fund  or  money  belonging  to  the  creditor,  but 
only  a  general  liability  or  obligation  to  pay. 

Fourth  Theory.  —  Another  theory,  which  has  been  accepted 
and  adopted  by  many  of  the  courts,  is  that  the  legal  situs  of  the 
creditor's  right  is  to  be  distinguished  from  the  actual  situs  of 
the  debtor's  obligation  ;  that  as  the  former  is  located  with  the 
creditor  at  his  domicil,  so  the  latter  is  situated  at  the  debtor's 
domicil ;  and  that,  for  purposes  of  jurisdiction  in  rem,  the  court 
must  regard  the  actual  situs  of  the  debt,^ 

The  fallacy  of  this  theory  is  that  it  treats  the  obligation  of 
the  debtor  as  local  instead  of  transitory,  as  fixed  at  his  domicil, 
instead  of  following  his  person  whithersoever  he  may  go.  In 
other  words,  this  view  regards  the  actual  situs  of  the  debt  as  at 
the  legal  rather  than  the  actual  situs  of  the  debtor.  This  is 
fallacious.  The  creditor  is  not  confined  to  the  debtor's  domicil 
for  the  purpose  of  enforcing  the  obligation  to  pay,  but  may 
proceed  against  him  wherever  he  finds  him,  unless  the  municipal 
law  forbids.  All  that  is  necessary  is  that  the  court  should  have 
jurisdiction  of  the  debtor's  person,  by  his  voluntary  appearance 
or  by  process  served  upon  him  within  the  territorial  limits  of 
the  court's  jurisdiction. 

Fifth  and  True  Theory.  —  The  fourth  theory,  as  we  have 
just  seen,  is  erroneous  simply  because  of  the  narrow  limits  it 
allows  to  the  actual  situs  of  a  debt,  confining  it  to  the  debtor's 
domicil.  The  true  theory  is  that  the  situs  of  a  debt,  for  pur- 
poses of  garnishment,  is  not  only  at  the  domicil  ofT;he  debtor, 

mishee  may  be  found,  providecl 
tlie  municipal  law  ot  that  State  permits  the  debtor  to  oe  gar- 
msKed,  Uiid  ptoviaea  ilie  court  acquires  jurisdiction  over  tna" 

8  Bragg  V.  Gaynor,  85  Wis.  468,  55  N.  W.  924 ;  Cross  v.  Brown,  19  R.  I. 
220,  33  Atl.  147  ;  Lawrence  v.  Smith,  45  N.  H.  533,  86  Am.  Dec.  183  ;  Ting- 
ley  V.  Bateman,  10  Mass.  343 ;  Lerkin  v.  Wilson,  106  Mass.  120 ;  Craig  v. 
Gunn,  67  Vt.  92,  30  Atl.  860  ;  Newland  v.  Reilly,  85  Mich.  151,  48  N.  W. 
544.  See  Chicago,  etc.  R.  R.  Co.  v.  Sturm,  174  U.  S,  710  ;  King  v.  Croas, 
175  U.  S.  396. 

to 


290  EXEMPTIONS.  §  126 

garnishee,  through  his  voluntary  appearance  or  actual  serrice 
""ofpTocess  upon  him  within  the  State.  Of  course  in  most  cases 
the  question  will  arise  in  the  garnishee's  domicil." 

Sixth  Theory.  —  A  few  cases  will  be  found,  which  regard  the 
place  where  the  debt  is  payable  as  important  in  fixing  its  situs 
for  the  purpose  of  garnishment.^*'  But  these  have  no  basis  of 
principle  upon  which  to  rest,  and  may  be  disregarded,  as  founded 
upon  a  misapprehension  of  the  question  involved. ^^ 

§  126.  Same  —  Exemptions.  —  A  question  incidental  to  gar- 
nishment proceedings  sometimes  arises  as  to  the  law  which 
•hould  govern  the  legal  exemptions  to  be  claimed  by  the  attach- 
ment defendant.  The  question  has  usually  arisen  with  respect 
to  the  wages  of  laborers,  exempt  by  law  from  their  debts,  in 
cases  where  the  law  of  the  attachment  defendant's  domicil  en- 
titles him  to  exemption  of  wages,  while  the  law  of  the  forum 
(the  place  of  the  attachment  and  garnishment)  does  not,  or  not 
to  the  same  extent;  or  where  there  is  a  difference  on  this  point 
between  the  law  of  the  place  where  the  defendant  entered  into 
his  contract  of  service  and  the  law  of  the  forum.    In  such  cases, 

»  Morgan  v.  Neville,  74  Penn.  St.  52,  57-58  ;  Neufelder  v.  Ins.  Co. ,  6  Wash. 
341,  33  Pac.  870  ;  Mooney  «;,  R.  R.  Co.,  60  la.  346,  14  N.  W.  343 ;  Harvey  ». 
R.  R  Co.,  50  Minn.  405,  52  N.  W.  905 ;  National  Ins.  Co.  v.  Chambers,  53 
N.  J.  Eq.  468,  32  Atl.  663  ;  Howland  v.  R.  R.  Co.,  134  Mo.  474, 36  S.  W.  29; 
Manufacturing  Co.  v.  Lang,  127  Mo.  242,  29  S.  W.  1010  ;  Burlington,  etc. 
R.  R.  Co.  V.  Thompson,  31  Kan.  180,  47  Am.  Rep.  497 ;  Railroad  Co.  ». 
Crane,  102  111.  249,  40  Am.  Rep.  581.  See  also  Chicago,  etc.  R.  R.  Co.  p. 
Sturm,  174  IT.  S.  710  ;  Mooney  ».  Mfg.  Co.,  72  Fed.  32.  In  the  last  case 
the  court  announces  the  doctrine  that  a  garnishmei^:  is  a  proceeding  *»  per- 
sonam.  This  is  contrary  to  the  usually  accepted  idea,  but  it  is  believed  the 
court  is  correct.  The  attachment  is  a  proceeding  in  rem,  the  res  being  the 
general  liability  of  the  debtor,  which  general  liability  upon  its  seizure  by 
the  attaching  creditor  can  be  rendered  fixed  and  definite  only  by  a  proceeding 
in  personam  against  the  debtor,  that  is,  by  garnishment.  See  Fithian  v.  R.  R. 
Co.,  31  Penn.  St.  114. 

1°  See  Manufacturing  Co.  v.  Lang,  127  Mo.  242,  29  S.  W.  1010  ;  Lawrence 
V.  Smith,  45  N.  H.  533,  86  Am.  Dec.  183 ;  Tuller  v.  Arnold,  93  Cal.  166,  28 
Pac.  863  ;  American  Ins.  Co.  v.  Hettler,  37  Neb.  849,  56  N.  W.  711  ;  McBee 
V.  Purcell  Bank  (Ind.  Ter.),  37  N.  W.  65 ;  Mo.  Pac.  R.  R.  Co.  v.  Sharritt, 
43  Kan.  375,  387,  23  Pac.  430. 

"  Chicago,  etc.  R.  R.  Co.  v.  Sturm,  174  U.  S.  710,  716-717. 


§  126  EXEMPTIONS.  291 

the  decisions   of  the  courts  as  to  what  law  shall  govern  the 
exemption  to  be  accorded  have  not  been  uniform. 

If  the  court  where  the  attachment  issues  has  jurisdiction  of 
the  res  (that  is,  of  the  garnishee),  following  the  rule  that  ex- 
emptions usually  pertain  to  the  remedy,  and  that  the  lex  fori 
therefore  ordinarily  regulates  them,^  the  general  principle  is 
that  the  law  of  the  forum  will  usually  determine  what  exemp- 
tion the  attachment-defendant  is  entitled  to.  This  subject  is 
fully  treated  hereafter,  and  its  consideration  had  better  be 
postponed  until  then.' 

1  Post,  §  209.  3  PoBt,  %  209. 


V 


.  ■/ 


n/ 


292  VARIOUS  KINDS   OF  TRANSFER.  §  127 


CHAPTER  XI. 

VOLUNTARY  TRANSFERS  OF  PERSONALTY  INTER  VIVOS. 

§  127.  Preliminary  —  Various  Kinds  of  Transfer.  —  We 
have  seen  that  the  legal  situs  of  personalty  will  usually  furnish 
the  ** proper  law"  to  govern  transfers  thereof,  while  the  law  of 
the  actual  situs  of  the  property  or  the  lex  fori  will  be  substi- 
tuted for  the  proper  law  whenever  the  interests  of  the  forum  or 
its  citizens  demand  such  a  course,  and  indeed  in  all  cases 
where  the  exceptions  to  the  operation  of  the  proper  foreign  law 
come  into  play. 

It  will  also  be  remembered  that  the  legal  situs  of  personalty 
follows  the  actual  or  the  legal  situs  of  the  owner,  according  as 
the  personalty  is  dealt  with  in  a  transaction  in  which  the  owner 
"Voluntarily  participates  or  in  a  transaction  in  which  his  par- 
ticipation is  involuntary  or  compulsory,  a  transaction  resulting 
merely  by  operation  of  law.  In  case  of  voluntary  transactions, 
the  actual  situs  of  the  owner  furnishes  the  proper  law.  In  case 
of  involuntary  transactions,  the  law  of  the  legal  situs  of  the 
owner  prevails.  But  both  are  liable  to  be  substituted  by  the 
law  of  the  actual  situs  of  the  property  under  the  circumstances 
mentioned. 

Voluntary  transfers  are  always  the  result  of  the  owner's 
agreement,  made  in  the  exercise  of  his  jus  disponendi,  such  as 
absolute  conveyances,  executed  sales,  chattel  mortgages  and 
deeds  of  trust,  conditional  sales  with  reservation  of  title,  deeds 
of  assignment  for  the  benefit  of  creditors,  etc. 

Involuntary  transfers  are  those  resulting  not  from  the  volun- 
tary agreement  of  the  owner,  but  from  the  mere  operation  of 
law,  independently  of  the  parties'  will.  Some  of  these  trans- 
fers are  effected  by  the  law  solely  in  the  interests  of  creditors 
and  other  third  persons,  as  in  the  case  of  involuntary  assign- 
ments in  bankruptcy  and  insolvency.     Others  are  effected  upon 


§  128      CONVEYANCES  AND  SALES  OF  PERSONALTY.       293 

grounds  of  public  policy,  entirely  irrespective  of  the  rights  of 
creditors  and  third  persons,  as  in  the  case  of  the  husband's 
common  law  title  to  the  wife's  personalty  upon  marriage.  And 
still  others  are  based  upon  both  grounds,  as  in  case  of  the  suc- 
cession to  a  decedent's  estate,  in  which  case  the  title  of  the  ad- 
ministrator belongs  in  the  main  to  the  first  head,  while  the  title 
of  the  distributees  to  the  residuum  belongs  to  the  second. 

If  the  purpose  of  the  involuntary  transfer  is  the  protection 
of  creditors,  each  State  wherein  any  of  the  property  is  located 
looks  first  of  all  to  the  protection  of  its  own  citizens,  and  a 
transfer  of  the  owner's  property  in  another  State  for  such  pur- 
pose, even  in  the  State  of  the  owner's  domicil,  will  be  given  in 
general  no  effect  in  any  other  State  as  to  property  actually 
situated  there,  so  long  as  there  are  creditors  there  unsatisfied. 
The  law  of  the  actual  situs  of  the  personalty,  not  of  its  legal 
situs  (lex  domicilii),  is  applied  so  regularly  in  such  cases  as 
to  obscure  and  almost  wipe  out  the  general  principle  that  in 
all  cases  of  involuntary  transfer  the  lex  domicilii  of  the  owner 
furnishes  the  "proper  law." 

But  the  latter  principle  again  clearly  shines  forth  when  we 
come  to  deal  with  the  second  class  of  involuntary  transfers,  re- 
sulting from  general  motives  of  policy,  not  for  the  protection  of 
creditors.  In  such  cases  the  substitution  of  the  lex  fori  et  situs 
for  the  proper  law  (lex  domicilii)  is  comparatively  rare. 

§  128.  Absolute  Conveyances  and  Executed  Sales  of  Per- 
sonalty. —  An  unbroken  line  of  authority  sustains  the  general 
proposition  that,  as  between  the  parties,  the  law  of  the  actual 
situs  of  the  owner  at  the  time  of  the  transfer,  that  is,  the  law 
of  the  place  where  the  transfer  is  made  (lex  loci  contractus), 
governs  the  validity  and  effect  of  absolute  conveyances  of  per- 
sonalty, including  assignments  of  choses  in  action  and  executed 
sales.  The  conveyance,  assignment,  or  sale,  if  valid  where 
made,  will  be  upheld,  as  between  the  parties,  in  every  juris- 
diction in  which  it  may  be  called  in  question;  if  invalid  where 
made,  it  will  not  be  sustained  elsewhere.* 

1  Black  V.  Zacharie,  3  How.  483,  514  ;  Kerr  v.  Urie,  86  Md.  72,  37  Atl. 
789  ;  Fowler's  Appeal,  125  Penn.  St.  388,  17  Atl.  431  ;  Marvin  Safe  Co.  v. 
Norton,  45  N.  J,  L.  412,  57  Am.  Rep.  566,  7  Atl.  418 ;  Weinstein  v.  Freyer, 


294       CONVEYANCES  AND  SALES  OP  PERSONALTY.      §  128 

It  must  be  observed  however  that  while  the  validity  of  the 
substantial  provisions  and  of  the  formalities  of  the  transfer,  as 
between  the  parties,  is  to  be  tested  by  the  lex  loci  contractus, 
its  validity,  so  far  as  it  depends  upon  the  legality  of  the  con- 
sideratioUf  may  be  governed  by  a  different  law,  in  cases  where 
the  situs  of  the  consideration  is  a  State  other  than  the  locus 
contractus. 

Hence,  although  in  case  of  articles  prohibited  to  be  sold  in 
one  State,  a  sale  thereof  made  in  another  State  and  valid  there 
will  not  be  held  invalid  even  in  the  prohibiting  State,  and  even 
though  the  goods  were  purchased  to  be  resold  in  the  forum  and 
the  vendor  knew  that  fact,*  yet  if  the  vendor  not  only  knew  that 
the  goods  were  to  be  resold  in  the  forum,  but  knew  also  that  such 
sale  was  contrary  to  the  law  of  that  State,  the  vendor  will  not  be 
allowed,  according  to  the  better  opinion,  to  recover  the  price  in 
the  courts  of  the  State  whose  laws  he  has  deliberately  helped  to 
violate.*  A  fortiori,  he  would  not  be  entitled  to  recover  there, 
if  he  should  take  any  active  steps  to  aid  the  vendee  in  disposing 
of  the  articles  in  the  prohibiting  State,  in  conscious  violation  of 
its  law.*  Nor  indeed  should  he  be  permitted  to  sue  in  any  State 
upon  a  contract  the  deliberate  purpose  of  which  is  to  violate  the 
laws  of  a  sister  State.* 

Difficulty  is  sometimes  experienced  in  ascertaining  the  locus 
contractus  in  case  of  sales.     This  topic  will  be  fully  developed 

93  Ala.  257,  9  So.  285  ;  In  re  Dalpay,  41  Minn.  532,  43  N.  W.  564.  So  ex- 
ecuted sales  of  personalty,  as  between  the  parties,  are  governed  by  the  lex  loci 
contractus  as  to  their  validity  and  effect.  Suit  v.  Woodhall,  113  Mass.  391  ; 
Tarbox  v.  Childs,  165  Mass.  408,  43  N.  E.  124 ;  Erman  v.  Lehman,  47  La.  Ann. 
1651,  18  So.  650  ;  Claflin  v.  Meyer,  41  La.  Ann.  1048,  7  So.  139;  Sullivan  v. 
Sullivan,  70  Mich.  583,  38  N.  W.  472  ;  Webber  v.  Howe,  36  Mich.  150,  24 
Am.  Rep.  590  ;  Fred  Miller  Brewing  Co.  v.  De  France,  90  la.  395,  57  N.  W. 
959 ;  Boothby  v.  Plaisted,  51  N.  H.  436,  12  Am.  Rep.  140 ;  Beverwyck  Brew- 
ing Co.  V.  Oliver,  69  Vt.  323,  37  Atl.  1110. 
'  Merchants'  Bank  v.  Spalding,  9  N.  Y.  53. 

•  Webster  v.  Munger,  8  Gray  (Mass.),  584  ;  Graves  v.  Johnson,  156  Mass. 
211,  30  N.  E.  818,  32  Am.  St.  Rep.  446,  450,  note.  But  see  Hill  v.  Spear,  5(i 
N.  H.  253,  9  Am.  Rep.  205  ;  Mclntyre  v.  Parks,  3  Met.  (Mass.)  207. 

•  Pratt  V.  Adams,  7  Pai.  Ch.  (N.  Y. )  615,  632 ;  Knowlton  v.  Doherty,  87 
Me.  518,  47  Am.  St.  Rep.  349 ;  Hill  v.  Spear,  50  N.  H.  253,  9  Am,  Rep.  205. 

•  Weil  ».  Golden,  141  Mass.  364. 


§  128      CONVEYANCES  AND  SALES  OF  PERSONALTY.      296 

hereafter  in  examining  the  locus  contractus  of  executory  con. 
tracts.     Only  a  few  general  principles  will  here  be  mentioned.* 

The  locus  contractus  of  a  sale  is  the  place  where  the  sale  is 
finally  completed.  Until  that  time  the  contract  is  in  fieri,  the 
title  has  not  passed.  It  is  not  until  the  vendor  has  done  every- 
thing in  connection  with  the  transfer  necessary  to  pass  title  that 
the  sale  is  completed.  The  place  where  the  final  act  essential  to 
this  result  is  performed  is  the  locus  contractus.  The  place  at 
which  the  order  is  given,  or  from  which  the  order  is  sent  to  the 
vendor,  however  important  to  the  determination  of  the  locus 
contractus  of  an  executory  contract,  furnishes  no  safe  guide  in 
fixing  the  place  of  an  executed  sale.'  /^ 

In  Dolan  v.  Green,^  ihe  plaintiff  purchased  intoxicating 
liquors  from  the  defendant,  paying  him  for  them,  and  then 
sought  under  the  Massachusetts  statute  to  recover  the  price  he 
had  paid,  the  sale  being  invalid  by  the  law  of  Massachusetts. 
It  appeared  that  the  defendant,  who  resided  in  Khode_  I'sland, 
agreed  with  the  plaintiff  in  Massachusetts  to  sell  the  liquors; 
from  time  to  time  he  'selected  them  from  his  stock  in  Rhode 
Island  and  delivered  them  there  on  board  the  cars,  the  plaintiff 
paying  the  freight.  It  was  held  that  the  sale  was  made  in 
Rhode  Island,  and  being  valid  there  was  to  be  deemed  valid  in 
Massachusetts.     The  plaintiff  was  not  permitted  to  recover. 

On  the  other  hand,  in  Weil  v.  Golden,®  it  appeared  that  an 
order  was  taken  from  Golden  in  Rhode  Island  by  an  agent  of  a 
liquor  house  in  Philadelphia.  The  liquors  were  delivered  at  the 
vendee's  place  of  residence  in  Rhode  Island,  the  agent  paying 
the  freight  to  the  place  of  delivery.  It  was  held  that  Rhode 
Island  was  the  place  of  the  sale,  the  vendor's  last  act  in  com- 

6  See  post,  §§  157,  158. 

7  See  Sullivan  v.  Sullivan,  70  Mich.  583,  38  N.  W.  472;  Suit  v.  Woodhall, 
113  Mass.  391;  State  v.  O'Neil,  58  Vt.  140,  56  Am.  Rep.  557;  Beverwyck 
Brewing  Co.  v.  Oliver,  69  Vt.  323,  37  Atl.  1110  ;  Boothby  i;.  Plaisted,  51  N.  H 
436,  12  Am.  Rep.  140;  Tegler  v.  Shipman,  33  la.  194,  11  Am.  Rep.  118: 
Abberger  v.  Marrin,  102  Mass.  70  ;  Erman  v.  Lehman,  47  La.  Ann.  1651,  U 
So.  650 ;  Newman  v.  Cannon,  43  La.  Ann.  712,  9  So.  439 ;  Claflin  i;.  Meye^ 
41  La.  Ann.  1048,  7  So.  139. 

8  110  Mass.  322. 
*  141  Mass.  364. 


296      CONVEYANCES  AND  SALES  OP  PERSONALTY.      §  128 

pletion  of  the  sale  being  the  carriage  of  the  goods  to  Rhode 
Island. 

In  State  v.  O'Neil,"  a  resident  of  Vermont  purchased  liquor 
of  dealers  in  New  York,  upon  an  order  by  mail,  the  goods  to  be 
shipped  by  express,  C.  0.  D.  It  was  held  that  the  sale  took 
place  in  Vermont,  since  the  shipment  C.  0.  D.  indicated  an  in- 
tention to  make  the  payment  of  charges  a  condition  precedent 
to  the  vesting  of  title  in  the  vendee.-'^ 

In  sales,  as  in  other  transactions,  the  acts  of  an  agent  within 
the  scope  of  his  authority  are  the  acts  of  his  principal.  If  the 
agent  has  authority  to  sell,  and  does  so,  the  sale  takes  place  at 
the  place  where  the  agent  acts,  not  where  the  principal  lives  or 
does  business.  But  if  the  agent  has  no  authority  to  pass  the 
title,  but  only  to  forward  orders,  which  are  subject  to  the  prin- 
cipal's approval,  the  contract  is  not  completed  until  such  ap- 
proval; and  the  place  of  the  contract  must  be  referred  to  the 
place  where  the  approval  is  given. ^'^ 

It  is  to  be  observed  furthermore,  in  connection  with  convey- 
ances and  sales  of  personalty,  that  not  only  does  the  lex  loci 
contractus  govern  the  substantial  validity  of  the  transfer  as 
between  the  parties,  but  it  also  determines  the  effect  of  the 
contract,  and  in  general  the  interpretation  to  be  placed  upon 
the  terms  used,  when  an  ambiguity  arises  touching  the  legal 
signification  to  be  attached  to  them." 

10  58  Vt.  140,  56  Am.  Rep.  557. 

"  But  see  State  v.  Carl,  43  Ark.  353,  51  Am,  Rep.  565. 

1*  Ennan  v.  Lehman,  47  La.  Ann.  1651,  18  So.  650;  Newman  v.  Cannon, 
43  La.  Ann.  712,  9  So.  439.  In  these  cases  the  agent  had  absolute  authority 
to  sell.  Compare  with  these  Claflin  v.  Meyer,  41  La.  Ann.  1048,  7  So.  139, 
where  the  agent  had  only  authority  to  forward  orders.  See  also  Tegler  v.  Ship- 
man,  33  la.  194,  11  Am.  Rep.  118. 

13  Erman  v.  Lehman,  47  La.  Ann.  1651,  18  So.  650 ;  Newman  v.  Cannon, 
43  La.  Ann.  712,  9  So.  439;  Claflin  r.  Meyer,  41  La.  Ann.  1048,  7  So.  139. 
In  all  of  these  cases  the  question  involved  was  the  vendor's  right  to  a  lien  or 
"vendor's  privilege  "  under  the  law  of  Louisiana.  The  vendor's  right  to  the 
privilege  was  held  dependent  upon  the  law  of  the  place  of  sale.  In  Codman  v. 
Krell,  152  Mass.  214,  218,  it  was  held  that  the  lex  loci  contractus  should  deter- 
mine the  legal  interpretation  of  the  phrase  "  heirs  at  law,"  used  in  a  deed  con- 
veying personalty.     See  also  Meyer  v.  Richards,  163  U.  S.  385,  where  it  was 


§  129        TRANSFERS   OF  CHATTELS  —  CREDITORS.  297 

§  129.  Same  —  As  to  Third  Persons.  —  Notwithstanding 
the  general  rule  that  the  lex  loci  contractus  regulates  absolute 
conveyances  and  sales  of  personalty,  there  are  some  cases  in 
which  the  ''proper  law  "  for  this  purpose  will  be  substituted  by 
the  law  of  the  forum  and  actual  situs  of  the  property.  These 
cases  are  the  exceptional  cases  mentioned  in  the  second  chapter 
of  this  work. 

But  only  two  of  the  exceptions  there  mentioned  have  much 
practical  bearing  in  this  particular  instance.  It  is  in  general 
only  where  the  enforcement  of  the  proper  law  would  work  an 
injury,  loss,  or  injustice  to  the  citizens  of  the  forum,  or  would 
contravene  its  policy,  that  the  law  of  the  actual  situs  of  the 
property  will  prevail  over  the  lex  loci  contractus ;  though  it  is 
conceivable  that  a  transfer  valid  by  the  latter  law  might  be 
refused  recognition  in  another  State  because  the  consideration 
therefor  is  contra  honos  mores,^  or  that  a  transfer,  invalid  where 
made  because  of  a  penal  disability  imposed  upon  the  assignor, 
might  still  be  enforced  in  other  States.^  In  the  main,  however, 
the  operation  of  the  lex  fori  et  situs  will  be  confined  to  the  two 
cases  first  mentioned. 

Instances  of  the  application  of  the  lex  fori  et  situs  (instead 
of  the  lex  loci  contractus),  though  numerous  enough  in  cases  of 
chattel  mortgages  and  assignments  for  the  benefit  of  creditors,' 
are  much  more  infrequent  with  respect  to  absolute  conveyances 
and  executed  sales  of  personalty,  for  the  reason  that  there  are 
comparatively  few  differences  of  policy  between  the  various 
States  respecting  the  latter  transactions,  and  therefore  conflicts 
of  laws  are  not  so  apt  to  arise.  The  few  cases  that  have  been 
decided,  however,  indicate  that  the  lex  fori  et  situs  will  be 
applied  in  these  cases  in  the  same  way  and  to  the  same  extent 
as  in  the  case  of  chattel  mortgages  and  voluntary  assignments 

held  that  the  law  of  the  place  of  transfer  should  govern  the  question  whether 
the  vendor  of  certain  bonds  warranted  their  validity.  For  similar  questions 
touching  warranties  implied  in  sales  of  chattels,  see  Mcllvaine  u.  Legare,  36 
La.  Ann.  359 ;  Maillard  v.  Nihoul,  21  La.  Ann.  412. 

1  See  Savings  Bank  v.  National  Bank,  38  Fed.  800. 

a  See  Scoville  v.  Caufield,  14  Johns.  (N.  Y.)  338. 
'  8  Post,  §§  132-134. 


298  TRANSFERS   OF   CHATTELS  —  CREDITORS.       §  12^ 

for  the  benefit  of  creditors,  whenever  the  circumstances  call  for 
the  substitution  of  the  lex  fori  for  the  proper  law. 

The  mere  fact  that  the  property  conveyed  or  sold  is  in  another 
jurisdiction  than  the  locus  contractus,  and  that  citizens  of  the 
actual  situs  may  incur  loss  by  reason  of  the  transfer,  is  not  in 
itself  sufficient  to  call  for  the  overthrow  of  the  transfer,  where 
it  is  voluntary  and  contractual.*  In  order  that  the  lex  loci  con- 
tractus and  the  transfer  validly  made  thereunder  should  be  set 
aside,  the  transfer  must  be  positively  invalid  as  to  third  per- 
sons under  the  law  of  the  actual  situs  of  the  property.  The 
courts  of  the  latter  State  must  be  able,  by  substituting  their 
own  law,  to  pronounce  the  transfer  invalid  there.  There  must 
be  an  actual  substitution  of  the  lex  fori  for  the  proper  law,  as 
well  as  a  setting  aside  of  the  lex  loci  contractus. 

A  leading  case,  in  which  the  lex  fori  et  situs  was  applied  to 
an  absolute  conveyance  of  personal  property,  arose  in  Louisiana.* 
In  that  case,  a  transfer  of  part  of  a  ship  was  made  in  Virginia, 
where  the  owner  resided,  the  ship  at  the  time  of  the  sale  being 
at  the  New  Orleans  port.  Before  delivery  to  the  vendee  she 
was  attached  by  creditors  of  the  vendor  resident  in  Louisiana. 
By  the  common  law  (prevailing  in  Virginia),  it  was  argued, 
a  sale  of  goods  is,  or  may  be,  complete  without  delivery,  if  de- 
livery is  impossible  at  the  time  and  is  made  within  a  reasonable 
time  after  it  becomes  possible.  On  the  other  hand,  by  the  civil 
law  (prevailing  in  Louisiana),  delivery  is  absolutely  essential  to 
a  valid  title  in  the  purchaser.  The  vendor's  creditors,  attaching 
the  ship  before  any  delivery  to  the  vendee,  claimed  that  the 
title  was  still  in  the  vendor  (under  the  Louisiana  law),  and  that 
they  took  priority  over  the  vendee.  The  vendee  claimed  that  he 
had  already,  before  the  attachment,  acquired  a  good  title  under 
the  law  of  Virginia  (lex  loci  contractus).  There  being  thus 
a  conflict  between  the  "proper  law  "  on  the  one  side  and  the  lex 
fori  et  situs  on  the  other,  the  court  held  that  since  the  attaching 
creditors  were  citizens  of  Louisiana  and  would  be  injured  by  the 

*  It  is  otherwise  where  the  transfer  is  compulsory,  as  in  involuntary  assign- 
ments in  bankruptcy.     See  post,  §§  137,  138. 

'  Olivier  v.  Townes,  14  Mart.  (La.)  93.  See  also  Union  Bank  v.  Hartwell, 
84  Ala.  379,  4  So.  156,  157. 


§  129        TRANSFERS   OF  CHATTELS  —  CREDITORS.  299 

enforcement  of  the  Virginia  law,  the  law  of  the  forum  must  be 
substituted,  and  the  attachment  was  accordingly  sustained. 

In  contrast  with  this  another  Louisiana  case  may  be  pre- 
sented. In  Thuret  v.  Jenkins,'  the  circumstances  were  similar 
to  those  above  given,  except  that  the  ship  was  at  sea  at  the  time 
of  the  transfer.  It  was  attached  by  the  vendor's  creditors  upon 
reaching  port  in  Louisiana.  The  court,  dismissing  the  attach- 
ment and  upholding  the  "proper  law,"  said:  "In  transferring 
the  ship,  it  did  not  work  any  injury  to  the  rights  of  the  people 
of  another  country;  it  did  not  transfer  the  property  of  a  thing 
within  the  jurisdiction  of  another  government.  If  two  persons 
in  any  country  choose  to  bargain  as  to  the  property  which  one 
of  them  has  in  a  chattel,  not  within  the  jurisdiction  of  the  place, 
they  cannot  expect  that  the  rights  of  persons  in  the  country  in 
which  the  chattel  is  will  be  permitted  to  be  affected  by  their 
contract.  But  if  the  chattel  be  at  sea,  or  in  any  other  place,  if 
any  there  be,  in  which  the  law  of  no  particular  country  prevails, 
the  bargain  will  have  its  full  effect  eo  instanti,  as  to  the  whole 
world.  And  the  circumstance  of  the  chattel  being  afterwards 
brought  into  a  country,  according  to  the  laws  of  which  the  sale 
would  be  invalid,  would  not  affect  it." 

A  fortiori  would  this  be  true  if  the  chattel  were  in  the  locus 
contractus  at  the  time  of  the  transfer  (which  is  valid  there),  and 
were  afterwards  brought  by  the  vendee  into  another  State,  ac- 
cording to  whose  law  the  sale,  if  made  there,  would  be  invalid. 
In  such  case  the  lex  loci  contractus  should  clearly  prevail  over 
the  lex  fori.' 

So  also  cases  may  be  found  holding  that  where  the  policy  of 
the  forum  and  situs  would  be  contravened  by  the  enforcement 
of  the  lex  loci  contractus,  the  latter  must  give  way  to  the 
former  law.' 

Upon  principle,  it  would  seem,  in  these  cases,  if  the  suit 
should  be  instituted  in  the  locus  contractus  and  not  in  the  State 

«  7  Mart.  (La.)  318,  12  Am.  Dec.  508. 

7  Davis  V.  Williams,  73  Miss.  708,  19  So.  352 ;  Walker  v.  Marseilles,  70 
Miss.  284,  12  So.  211 ;  Bank  v.  Lee,  13  Pet.  107. 

8  Matthews  r.  Lloyd,  89  Ky.  625,  13  S.  W.  106.  See  Hoyt  v.  Thompson, 
19  N.  Y.  207. 


300  CHATTELS  —  RESERVATIONS   OF   TITLE.  §  130 

where  the  chattel  is  situated  (such  cases  would  be  rare),  that 
the  court  should  follow  the  lex  loci  contractus,  the  lex  situs  of 
the  property  usually  governing  only  because  it  is  also  the  forum. 
Hence  when,  instead  of  the  forum  and  the  situs  at  the  time  of 
the  transfer  being  identical,  it  is  the  locus  contractus  and  the 
forum  that  are  identical,  the  exceptional  operation  of  the  law  of 
the  actual  situs  of  the  property  at  the  time  of  the  transfer  should 
cease,  and  the  lex  loci  contractus  should  reign  supreme.*  And 
so,  if  the  forum  is  a  third  State,  neither  the  situs  nor  the  locus 
contractus. 

§  130.  Sale  of  Personalty,  with  Reservation  of  Title  in 
Vendor.  —  At  common  law  a  reservation  of  title  in  the  vendor 
of  a  chattel  until  the  purchase  price  is  paid  is  sustained  even 
as  against  a  purchaser  from  the  vendee  for  value  and  without 
notice  of  such  reservation.  But  in  many  States  by  statute 
the  reservation  is  void  as  against  third  persons  unless  it  is 
recorded. 

If  therefore  we  suppose  a  chattel  sold  with  such  reservation 
in  one  State  while  the  chattel  is  actually  situated  in  another 
State  subject  to  a  different  law,  or  is  subsequently  removed 
thither  by  the  vendee,  where  it  is  afterwards  sold  by  the  vendee 
to  a  purchaser  for  value  and  without  notice  of  the  reservation, 
which  law  is  to  govern  the  title  of  the  vendee's  purchaser  ? 

The  policy  of  the  laws  which  set  at  nought  the  contract  for 
the  reservation  of  the  title  in  favor  of  creditors  of  and  purchasers 
from  the  vendee,  must  be  kept  in  mind  in  the  solution  of  this 
question.      Some  avoid  the   reservation  of  title   absolutely  as 

»  See  Martin  v.  Hill,  12  Barb.  (N.  Y.)  631,  633  ;  Edgerly  v.  Bush,  81 
N.  Y.  199 ;  Homthall  v.  Burwell,  109  N.  C.  10,  13  S.  E.  721 ;  Boehme  v. 
Rail,  51  N.  J.  Eq.  574,  26  Atl.  832.  This  result  however  is  denied  in  one 
New  York  case,  in  which  it  was  held  that  even  though  the  suit  was  brought 
in  the  locus  contractus,  the  transfer  being  valid  there,  it  would  not  be  sus- 
tained if  invalid  by  the  law  of  the  actual  situs  of  the  chattels  at  the  time  of 
the  transfer.  This  case  would  seem  to  go  too  far  in  support  of  the  lex  situs. 
Guillander  v.  Howell,  35  N.  Y.  657.  Mr.  Wharton  also  goes  to  great  lengths 
in  giving  eflfect  to  the  lex  situs,  claiming  that  it  is  the  "  proper  law."  Whart. 
Confi.  L.  §§  297  et  seq.  The  true  rule  is  that  the  law  of  the  actual  situs  is 
effective  only  when  it  is  also  the  lex  fori,  the  lex  loci  contractus,  or  the  lex 
domicilii.     Standing  alone,  it  is  of  no  significance. 


§  130         CHATTELS  —  RESERVATIONS   OP   TITLE.  801 

against  such  creditors  and  purchasers ;  *  while  others  avoid  it 
as  to  such  third  persons,  unless  the  reservation  is  in  writing  and 
recorded.'^  The  purpose  of  these  laws  is  to  protect  persons  within 
the  State  where  they  are  in  force  in  advancing  money  to  the 
vendee  on  the  faith  of  an  apparently  complete  title  which  is  in 
reality  defective,  or  in  their  purchasing  the  chattel  from  the  ven- 
dee upon  the  faith  of  his  title.  It  is  not  the  purpose  of  such  a 
law  to  protect  third  persons  dealing  with  the  property  beyond 
the  limits  of  the  State,  for  with  respect  to  such  dealings  that 
State  has  no  authority  to  legislate.  On  the  other  hand  it  would 
seem  to  be  the  policy  of  these  laws  to  embrace  all  dealings  by 
third  persons  with  the  property  situated  within  the  limits  of 
their  authority,  regardless  of  the  law  of  the  place  where  the 
vendee  obtained  the  property  and  regardless  of  the  question 
whether  or  not  by  that  law  the  reservation  of  title  in  the  ven- 
dor is  valid  as  against  third  persons. 

Thus  it  will  be  seen  that  the  real  scope  of  these  laws  when 
they  exist  in  a  particular  State  is  to  embrace  all  personalty 
within  that  State^  whether  the  vendor's  reservation  of  title  was 
created  there  or  elsewhere;  and  they  do  not  apply  to  personalty 
elsewhere,  or  to  dealings  therewith  elsewhere  by  third  parties, 
even  though  the  original  sale  and  reservation  of  title  took  place 
in  the  former  State. 

It  follows  from  what  has  been  said  and  from  the  policy  of 
these  laws  invalidating  reservations  of  title  in  the  vendor  as 
against  creditors  of  and  purchasers  from  the  vendee,  that  it  is 
usually  the  law  of  the  State  where  the  purchaser  buys  from  th^ 
vendee  or  where  his  creditors  seek  to  subject  his  interest  that^"^ 
will  determine  the  validity  of  the  vendor's  reservation  of  title, 
the  law  of  the  place  of  the  vendor's  contract  of  sale  being  im- 
material. And  this  is  true  whether  the  chattel  sold  is  situated 
at  the  time  of  the  transfer  in,  or  is  subsequently  removed  by  the 
vendee  into,  the  State  where  the  subsequent  dealings  occur. 
Ordinarily,  therefore,  in  such  cases,  it  is  safe  to  follow  the  rule 

1  See  Marvin  Safe  Co.  v.  Norton,  48  N.  J.  L.  412,  57  Am,  Rep.  566,  7  Atl. 
418. 

3  See  Public  Parks  Amnsement  Co.  v.  Carriage  Co.,  64  Ark.  29,  40  S.  W. 
»82. 


302  CHATTELS  —  RESERVATIONS   OF  TITLE.  S  130 

that  the  law  of  the  place  where  the  subsequent  dealings  occur 
will  govern.' 

Thus,  in  Hervey  v.  Locomotive  Works,*  a  Rhode  Island  com- 
pany delivered  a  locomotive  in  Rhode  Island  to  a  contractor  on 
a  railroad  in  Illinois,  reserving  the  title  until  the  payment  of 
the  price.  By  the  law  of  Rhode  Island  the  reservation  of  title 
was  valid  as  against  subsequent  creditors  of  the  vendee.  By 
'.he  law  of  Illinois  it  was  invalid  as  against  them  until  recorded. 
The  engine  was  attached  in  Illinois  by  subsequent  creditors  of 
the  vendee,  and  sold  to  Hervey.  In  a  contest  between  Hervey 
and  the  vendor,  it  was  held  that  the  law  of  Illinois  must  gov- 
ern. Here  the  reservation  of  title  was  valid  by  the  lex  loci 
contractus,  but  invalid  by  the  law  of  the  place  where  the  sub- 
sequent dealings  therewith  were  had. 

On  the  other  hand,  in  Weinstein  v.  Freyer,*  the  circumstances 
were  just  reversed,  but  the  same  law  was  held  to  govern.  In 
that  case  the  vendor  sold  the  vendee  a  piano  in  Georgia,  reserv- 
ing title.  By  the  law  of  Georgia,  such  a  reservation  was  in- 
valid as  to  purchasers  from  the  vendee,  unless  recorded.  In 
this  case  there  was  no  recordation.  Then  the  vendee  removed 
the  chattel  to  Alabama,  and  there  sold  it  to  a  bona  fide  pur- 
chaser. The  common  law,  prevailing  in  Alabama,  held  such  res- 
ervation valid,  without  recordation.  It  was  held  that  the  rights 
of  the  vendee's  purchaser  were  to  be  determined  by  the  law  of 
Alabama;  that  the  contract  reserving  the  title  in  the  vendor 
gave  the  vendee  a  defective  title  in  Georgia,  as  between  the 
parties  ;  that  when  the  vendee  brought  the  piano  into  Alabama, 
he  came  with  a  defective  title  under  the  Georgia  law ;  that  when 
he  sold  the  piano  in  Alabama,  that  defect  had  not  been  cured 
by  the  Alabama  law,  which  recognized  the  vendor's  rights ;  and 
that  the  vendee  could  convey  the  purchaser  no  better  title  than 
he  himself  possessed.' 

•  Hervey  v.  Locomotive  Works,  93  17.  S.  664 ;  Marvin  Safe  Co.  v.  Norton, 
48  N.  J.  L.  412,  57  Am.  Rep.  566,  7  Atl.  418  ;  Weinstein  v.  Freyer,  98  Ala. 
257,  9  So.  285  ;  Public  Parks  Amusement  Co.  v.  Carriage  Co.,  64  Ark.  29,  40 
S.  W.  582 ;  The  Marina,  19  Fed.  760. 

•  93  U.  S.  664.  »  93  Ala.  257,  9  So.  285. 

•  See  also  Marvin  Safe  Co.  p.  Norton,  48  N.  J.  L.  412.  57  Am.  Rep.  566, 


§  181  DONATIONS   MORTIS   CAUSA.  303 

§  131.  Donations  Mortis  Causa.  —  If  property,  trangferred  by 
donation  mortis  causa,  is  situated  apart  from  the  dying  owner  in 
another  State,  in  determining  the  "proper  law  "  to  govern  the 
validity  of  the  donation,  it  becomes  necessary  to  consider  whether 
it  shall  be  deemed  a  transfer  inter  vivos  or  a  testamentary  dispo- 
sition. In  truth,  it  is  neither  the  one  nor  the  other,  though 
partaking  of  the  nature  of  both.  The  title  of  the  donee  is  not, 
strictly  speaking,  contractual,  since  the  transfer  is  conditional 
and  revocable,  nor  is  it,  in  strictness,  testamentary. 

But  in  ascertaining  the  ''proper  law  "  to  govern  such  a  trans- 
fer it  is  not  so  necessary  to  observe  whether  the  transfer  is  con- 
tractual or  not,  as  to  observe  whether  it  is  the  result  of  the 
voluntary  act  of  the  owner.  If  it  is,  the  *' proper  law  "  will  be 
the  law  of  the  actual  situs  of  the  owner  at  the  time  of  the  trans- 
fer. On  the  other  hand  if  the  transfer  result  without  the  active 
participation  of  the  owner,  it  is  involuntary,  and  the  "  proper 
law"  is  the  law  of  the  legal  situs  (or  domicil)  of  the  owner. 
Thus  a  title  arising  under  the  will  of  a  testator,  though  at  first 
glance  it  appears  to  be  the  result  of  the  testator's  voluntary  act, 
in  reality  takes  effect  only  by  his  death  (an  involuntary  act), 
and  is  therefore  classed  with  involuntary  transfers,  to  be  regu- 
lated by  the  lex  domicilii  of  the  testator.^ 

Whether  a  donation  mortis  causa  is  to  be  considered  a  volun- 
tary transaction,  like  a  conveyance,  to  be  regulated  by  the  law 
of  the  actual  situs  of  the  owner  (lex  loci  contractus),  or  whether 
it  is  to  be  deemed  an  involuntary  transfer,  like  a  will,  because 
not  taking  effect  until  the  donor's  death,  and  therefore  to  be  reg- 
ulated by  the  lex  domicilii,  is  still  a  doubtful  matter.  Only  one 
case  has  been  found  which  deals  with  the  question,  in  which  the 
view  was  taken  that  the  vendee's  title  vests  immediately  upon 
the  donation,"  but  that  the  title  is  defeasible  by  reclamation,  de- 
liverance from  the  peril,  etc. 

In  that  case,  the  decedent  was  domiciled  in  New  Hampshire. 
While  temporarily  in  Vermont,  he  was  taken  ill,  and  before  his 
death  delivered  certain  personalty  to  the  defendant  mortis  causa. 

7  Atl.  418 ;  Public  Parks  Amusement  Co.  v.  Carriage  Co.,  64  Ark.  29,  40  S.  W. 
582  ;  The  Marina,  19  Fed.  760. 
1  Post,  §  142. 


S04  CHATTEL  MOKTGAGBS  —  LIENS.  §  132 

The  donation  was  valid  by  the  law  of  Vermont  where  it  was 
made,  but  the  law  of  New  Hampshire,  the  donor's  domicil,  re- 
quired that  such  donations  should  be  proved  by  the  testimony  of 
two  indifferent  witnesses,  upon  petition  by  the  donee  to  the  pro- 
bate court  to  establish  the  gift,  filed  within  sixty  days  after  the 
owner's  decease.  These  conditions  were  not  complied  with,  and 
the  question  arose  in  New  Hampshire  as  to  the  validity  of  the 
gift,  and  the  ''proper  law"  governing  it.  The  court  held  that 
the  donation  was  a  voluntary  and  contractual,  rather  than  a  tes- 
tamentary, disposition,  and  that  the  lex  loci  contractus,  not  the 
lex  domicilii,  was  the  proper  law.'^ 

§  132.  Chattel  Mortgages  —  Liens  upon  Personalty.  —  Chat- 
tel mortgages  are  voluntary,  though  qualified,  transfers,  and 
being  the  result  of  contract  are  governed  as  between  the  parties 
thereto,  like  other  contractual  transfers,  by  the  lex  loci  contrac- 
tus, not  by  the  lex  domicilii  of  the  owner,  nor  the  lex  situs  of 
the  chattels  unless  that  happens  to  be  identical  with  the  forum, 
as  will  usually  be  the  case.^ 

But  with  respect  to  creditors  of  and  purchasers  from  the  mort- 
gagor, if  the  chattels  are  situated  in  a  State  other  than  the  locus 
contractus  at  the  time  of  the  mortgage,  and  by  the  law  of  the 
actual  situs  and  forum  the  chattel  is  void  as  to  creditors  and 
purchasers,  the  lex  fori  et  situs  will  usually  be  substituted  for 
the  proper  law,  upon  the  ground  that  the  enforcement  of  the 

*  Emery  v.  Clough,  63  N.  H.  652,  4  Atl.  796. 

1  In  many  of  the  cases,  the  language  of  the  opinions  would  seem  to  indicate 
that  the  lex  domicilii  is  to  govern  as  between  the  parties,  but  it  will  be  found 
in  these  cases  that  the  transfer  was  made  in  the  domicil  of  the  owner,  and 
hence  the  lex  loci  contractus  and  lex  domicilii  are  identical.  See  Green  v.  Van 
Buskirk,  5  Wall.  307,  311,  312  ;  Kanaga  v.  Taylor,  7  Ohio  St.  134,  70  Am.  Dec. 
62  ;  Nichols  v.  Mase,  94  N.  Y.  160  ;  Martin  v.  Hill,  12  Barb.  (N.  Y.)  631, 
633  ;  Langworthy  v.  Little,  12  Gush.  (Mass.)  109  ;  Edgerly  v.  Bush,  81  N.  Y. 
199  ;  Hornthall  v.  Burwell,  109  N.  C.  10,  13  S.  E.  721,  722;  Boehme  v.  Ball, 
51  N.  J.  Eq.  674,  26  Atl.  832  ;  Cronan  v.  Fox,  50  N.  J.  L.  417,  14  Atl.  119  ; 
Barker  v.  Stacy,  25  Miss.  477  ;  Ames  Iron  Works  v.  Warren,  76  Ind.  512,  40 
Am.  Rep.  258,  259  ;  Fowler  v.  Bell,  90  Tex.  150,  85  S.  W.  822 ;  Richardson 
V.  Shelby,  3  Okl.  68,  41  Pac.  378 ;  Bank  v.  Hill,  99  Tenn.  42,  41  S.  W.  349  ; 
Mackey  v.  Pettijohn,  6  Kan.  App.  57,  49  Pac.  636  ;  Handley  v.  Harris,  48 
Kan.  606,  29  Pac.  1145  ;  Miles  v.  Oden,  8  Mart.  n.  s.  (La.)  214,  19  Am.  Dec. 
177.    See  Stirk  v.  Hamilton,  83  Me.  624,  22  Atl.  391. 


§  132  CHATTEL  MOETGAGES  —  LIENS.  305 

proper  law  would  contravene  the  policy  of  the  forum  or  would 
work  a  detriment  to  its  citizens.'^ 

In  Green  u.  Van  Buskirk,'  a  leading  case,  Bates,  the  owner  of 
certain  iron  safes,  situated  in  Chicago,  executed  and  delivered 
in  New  York  to  Van  Buskirk  a  chattel  mortgage  upon  them. 
Afterwards  and  before  recordation  of  the  mortgage  as  the  law  of 
Illinois  required,  Green  attached  the  safes  in  Illinois  as  the 
property  of  Bates.  The  mortgage  was  valid  by  the  law  of  'New 
York  as  to  Green,  who  was  a  citizen  of  that  State,  but  by  the 
law  of  Illinois  it  was  invalid  as  to  him  until  recorded.  The 
Illinois  courts  sustained  the  attachment  and  ordered  the  safes  to 
be  sold  and  the  proceeds  paid  to  Green,  which  was  done.  Van 
Buskirk  afterwards  sued  Green  in  the  courts  of  New  York  for 
the  value  of  the  safes  upon  the  ground  that  the  property  belonged 
to  him  and  not  to  Bates,  under  the  law  of  New  York.  The  court 
held  that  by  the  law  of  New  York  the  property  was  Van  Bus- 
kirk's  and  permitted  him  to  recover  against  Green.*  From  this 
decision  an  appeal  was  taken  to  the  Supreme  Court  of  the  United 
States  upon  the  constitutional  ground  that  full  faith  and  credit 
had  not  been  shown  by  the  New  York  courts  to  the  Illinois  judg- 
ment, and  upon  this  ground  the  decision  was  reversed.  The  Su- 
preme Court  held  that  Van  Buskirk  possessed  a  title  under  the 
law  of  New  York  eqital  but  not  superior  to  that  of  Green  under 
the  law  of  Illinois;  and  that,  although  Van  Buskirk  was  not  a 
party  to  the  attachment  in  Illinois,  that  fact  did  not  permit  him 
to  set  up  anywhere  a  title  which  was  not  superior  to  that  of  the 
attaching  creditor.  In  this  case,  it  will  be  observed.  Green  was 
a  citizen  of  New  York,  not  of  Illinois.  The  court  of  Illinois 
proceeded  upon  the  supposition  that  the  intent  and  policy  of  the 

2  See  Green  v.  Van  Buskirk,  5  Wall.  307;  Smith  v.  Smith,  19  Gratt.  (Va.) 
545  ;  Ghillingworth  v.  Eastern  Tinware  Co.,  66  Conn.  306,  33  Atl.  1009  ;  Miles 
V.  Oden,  8  Mart.  N.  s.  (La.)  214,  19  Am.  Dec.  177.  If  the  ground  of  the  ex- 
ception is  the  upholding  of  a  general  policy  of  the  forum,  the  citizenship  of  the 
third  parties  is  immaterial.  The  operation  of  the  lex  situs  is  just  as  extensive 
as  the  legislature  intended  it  should  be,  no  more  and  no  less.  See  Green  v. 
Van  Buskirk,  5  Wall.  307;  Miles  v.  Oden,  8  Mart  n.  s.  (La.)  214,  19  Am. 
Pec.  177. 

»  5  Wall.  307;  s.  c.  7  Wall.  139. 

*  Van  Buskirk  v.  Warren,  2  Keyes  (N.  Y.),  119. 

20 


306  CHATTEL  MORTGAGH6  —  LIENS.  §  132 

Illinois  statutes  of  registry  was  not  merely  to  protect  its  own 
citizens  against  secret  liens,  but  to  prohibit  such  liens  altogether 
in  that  State.  And  the  Supreme  Court  affirmed  the  sovereign 
right  of  the  State  of  Illinois  to  deal  with  property  within  its 
limits  in  whatever  manner  it  should  see  fit,  though  the  owner 
lived  and  contracted  elsewhere  with  reference  to  the  property,  at 
the  same  time  admitting  the  equally  sovereign  right  of  the  State 
of  New  York  to  make  such  regulations  as  it  should  deem  proper 
touching  the  persons,  transactions,  or  property  within  its  limits. 
But  the  right  of  New  York  was  only  equal  to  that  of  Illinois, 
not  superior  to  it. 

On  the  other  hand,  where  a  transfer  of  chattels  in  one  State  is 
alleged  as  the  result  of  a  contract  made  in  another,  the  fact 
that  the  transfer  is  valid  under  the  law  of  the  actual  situs  of  the 
chattels  cannot  make  it  a  valid  agreement,  if  invalid  by  the  lex 
loci  contractus.  In  other  words,  the  lex  situs  cannot  make  that 
a  valid  executed  contract  which  is  no  contract  at  the  time  and 
place  it  is  entered  into. 

Thus,  in  Wattson  v.  Campbell,^  a  chattel  mortgage  was  ex- 
ecuted in  Pennsylvania  upon  a  ship  situated  in  New  York.  By 
the  law  of  Pennsylvania  such  a  mortgage  was  invalid  as  to 
creditors  if  unaccompanied  by  actual  change  of  possession.  Be- 
fore the  mortgagee  obtained  possession  the  vessel  was  attached 
in  New  York  by  a  Pennsylvania  creditor.  The  court  held  that 
the  lex  loci  contractus,  not  the  lex  situs,  should  govern. 

Most  of  the  cases  however  present  the  question  as  to  the  law 
to  be  applied  in  cases  where  the  property  mortgaged  was  at  the 
time  of  tKe  mortgage  in  the  locus  contractus,  but  was  subse- 
quently removed  to  another  State  without  the  consent  of  the 
mortgagee,  the  mortgage  being  valid  as  to  the  whole  world  by 
the  lex  loci  contractus,  but  invalid'as  to  third  persons  by  the 
law  of  the  State  to  which  the  chattels  have  been  removed,  which 
will  also  in  most  instances  be  the  forum.     It  will  be  observed 

'  38  N.  Y.  153.  But  if  the  invalidity  is  created  by  a  statute  of  the  locus 
contractus,  which  has  no  exterritorial  force,  such  as  an  insolvent  or  a  penal 
law,  it  has  been  held  that  the  invalidity  will  not  be  regarded  in  other  States. 
Hoyt  V.  Thompson,  19  N.  Y.  207  ;  Scoville  •.  Caufield,  14  Johns.  (N.  Y.) 
338. 


§  132  CHATTEL   MORTGAGES  —  LIENS.  307 

that  we  now  have  on  the  side  of  the  validity  of  the  mortgage  aa 
against  third  persons  the  lex  loci  contractus  and  the  lex  situs  of 
the  chattels  at  the  time  of  the  transfer,  while  on  the  side  of  its 
invalidity  as  to  third  persons  we  have  the  law  of  the  actual 
situs  at"  the  time  the  mortgagor's  creditors  subject  the  property 
or  the  property  is  purchased  from  him  and  (usually)  the  lex 
fori. 

The  decided  weight  of  authority  is  in  favor  of  the  view  that 
since  the  actual  situs  of  the  chattels  at  the  time  of  the  transfer 
coincides  with  the  lex  loci  contractus,  and  since  by  those  united 
laws  the  mortgagee  takes  a  title  valid  as  against  the  whole 
world,  no  subsequent  removal  of  the  chattel  without  the  mort- 
gagee's consent  into  the  dominion  of  a  different  law  will  divest, 
in  whole  or  in  part,  the  mortgagee's  title  once  vested  thus  as 
against  the  world  under  the  law  of  the  only  State  which  at  the 
time  of  the  transfer  could  possibly  have  exercised  any  sover- 
eignty over  the  transaction.  Under  such  circumstances,  the  lex 
loci  contractus  should  prevail  over  every  other  law.' 

Especially  has  this  view  been  taken  where  the  question  arises 
in  the  locus  contractus,  so  that  the  locus  contractus,  the  former 
situs  of  the  property,  and  the  forum  all  coincide.' 

Thus,  in  Edgerly  v.  Bush,'  a  mortgage  of  horses  situated  in 

«  Barker  v.  Stacy,  25  Miss.  476,  477  ;  Ames  Iron  Works  v.  Warreu,  76 
Ind.  512,  40  Am.  Rep.  258,  259  ;  Nichols  v.  Mase,  94  N.  Y.  160  ;  Langworthy 
V.  Little,  12  Cush.   (Mass.)  109  ;  Bank  v.  Hill,  99  Tenn.  42,  41  S.  W.  349  ; 
Richardson  v.  Shelby,  3  Okl.  68,  41  Pac.  378  ;  Handley  v.  Harris,  48  Kan. 
606,  29  Pac.  1145  ;  Kaoaga  v.  Taylor,  7  Ohio  St.  134,  70  Am.  Dec.  62  ;  Mum- 
ford  V.  Canty,  50  111.  370,  99  Am.  Dec.  525,  529 ;  Craig  v.  Williams,  90  Va. 
500,  505  ;  Bank  v.  Lee,  13  Pet.  107.     But  there  are  a  few  cases  which  regard 
a  chattel  mortgage  as  a  mere  li^n,  not  as  a  transfer  of  title.    These  cases  hold 
that  the  lien  given  by  the  lex  loci  contractus,  though  valid,  as  between  the 
parties,  in  other  States  whither  the  chattels  are  removed,  will  not  be  given 
priority  over  the  claims  of  third  parties  recognized  by  the  law  of  the  last  situs 
of  the  chattels  and  of  the  forum.     See  Corbett  v.  Littlefield,  84  Mich.  30,  4/ 
N.  W.  581,  22  Am.  St.  Rep.  681  ;  Cronan  v.  Fox,  50  N.  J.  L.  417,  14  Atl 
1 19.     See  Hervey  v.  Locomotive  Works,  93  U.   S.  664 ;  Walworth  v.  Harris 
129  U.  S.  355. 

T  Edgerly  v.  Bush,  81  N.  Y.   199  ;  Martin  v.  HUl,  12  Barb.  (N.  Y.)  631 J 
,  Hornthall  v.  Burwell,  109  N.  C.  10,  13  S.  E.  721. 

8  81  N.  Y.  199. 


808  CHATTEL  MOBTOAGBS  —  LIENS.  §  132 

New  York  was  there  executed,  which  was  valid  under  the  laws 
of  New  York  against  the  world.  The  mortgagor  subsequently 
carried  the  horses  to  Canada  and  had  them  sold  there  in 
■market  overt  by  a  horse  trader.  They  were  sold  to  a  party  in 
Canada,  who  there  sold  them  to  the  defendant,  a  resident  of 
New  York.  The  mortgagee  sued  the  defendant  in  New  York 
for  the  conversion  of  the  horses.  By  the  law  of  Canada  a  sale 
in  market  overt  passed  an  unimpeachable  title.  The  court  held 
that  the  New  York  law  should  govern,  and  that  the  action 
might  be  maintained. 

The  case  of  Hornthall  v.  Burwell,'  though  somewhat  similar 
to  Edgerly  v.  Bush,  presents  one  important  variation  from  it. 
In  the  North  Carolina  case,  a  mortgage  was  executed  and  duly 
recorded  in  North  Carolina  upon  certain  horses  there  situated. 
The  mortgagor  subsequently  took  the  horses  into  Virginia, 
where  they  were  seized  and  sold  under  an  attachment  sued  out 
by  creditors  of  the  mortgagor.  The  mortgagee  thereupon  sued 
the  attaching  creditors  in  North  Carolina  to  recover  the  debt 
secured  by  the  mortgage,  and  the  court  held  that  he  was  enti- 
tled to  recover.  This  case  is  more  complicated  than  Edgerly 
V.  Bush,  in  that  the  element  of  a  judicial  proceeding  in  an- 
other State  is  here  presented,  which,  under  the  "full  faith  and 
credit "  clause  of  the  federal  constitution,  must  be  given  the 
same  effect  in  other  States  as  in  the  State  in  which  it  is  ren- 
dered. The  court,  in  Hornthall  v.  Burwell,  notices  these  prin- 
ciples, but  holds  that  they  did  not  apply,  because  the  judgment 
in  the  attachment  proceeding  would  have  been  deemed  void 
even  in  Virginia,  since  the  mortgagee  was  not  a  party,  and 
his  title  had  been  perfected  in  North  Carolina  as  against  the 
world,  and  could  not  be  divested  by  the  act  of  a  third  per- 
son. ^°  This  case  differs  from  Green  v.  Van  Buskirk,  above 
cited,  in  that  here  the  North  Carolina  title  was  not  only  equal, 

»  109  N.  C.  10,  13  S.  E.  721.  The  case  of  Martin  v.  Hill,  12  Barb.  (N.  Y.) 
631,  exhibits  a  similar  state  of  facts,  except  that  in  the  latter  case  the  oflScer 
levying  the  attachment  was  the  defendant,  instead  of  the  attaching  creditor. 
The  same  result  was  reached  in  both  cases. 

1"  See  Mumford  v.  Canty,  50  111.  370,  99  Am.  Dec.  525  ;  Craig  ».  Williams, 
»0  Va.  500. 


§  133      VOLUNTARY  ASSIGNMENTS  FOR   CREDITORS.       309 

but  superior,  to  the  claim  of  the  attaching  creditor  under  the 
Virginia  law. 

A  distinction  is  to  be  observed  between  a  transfer  of  title  and 
a  mere  lien.  With  respect  to  liens  on  personalty,  whether  ac- 
quired by  the  contract  of  the  parties, "or  by  implication  of  law," 
it  may  be  laid  down  as  a  general  proposition  that  while  the  lex 
(oci  contractus  will  regulate  them  as  between  the  parties,  regard- 
less of  the  lex  situs  of  the  chattels,  as  part  of  the  effect  or  obli- 
gation of  the  transfer, "  yet  when  the  question  is  whether  the 
lien  shall  take  priority  over  the  claims  of  other  persons,  the  lex 
loci  contractus  must  yield  to  the  law  of  the  situs  and  the 
forum." 

§  133.  Voluntary  Assignments  for  Benefit  of  Creditors  — 
General  Principles.  —  Assignments  for  the  benefit  of  creditors 
may  be  divided  into  two  classes,  —  those  which  result  from  the 
voluntary/  transfer  by  contract  of  the  insolvent  debtor,  and  those 
which  result  from  an  involuntary  or  compulsory  transfer  by  the 
act  and  operation  of  law  to  persons  named  by  the  law,  as  in  the 

11  Corbett  V.  Littlefield,  84  Mich.  30,  47  N.  W.  581,  22  Am.  St.  Rep.  681. 

12  Erman  v.  Lehman,  47  La.  Ann.  1651,  18  So.  650. 

1*  Erman  o.  Lehman,  47  La.  Ann.  1651,  18  So.  650  ;  Newman  v.  Cannon, 
43  La.  Ann.  712,  9  So.  439    (cases  of  "vendor's  privilege"). 

1*  See  Harrison  v.  Sterry,  5  Cr.  289,  298 ;  Hervey  v.  Locomotive  Works, 
93  U.  S.  664  ;  Corbett  v.  Littlefield,  84  Mich.  30,  47  N.  W.  581,  22  Am.  St. 
Rep.  681.  But  see  Walworth  v.  Harris,  129  U.  S.  355.  In  the  last  case,  the 
lien  did  not  arise  by  contract  but  by  a  statute  of  Arkansas.  It  was  a  lien  upon 
crops  for  rent.  The  crops  were  in  Arkansas  when  the  lien  for  rent  attached, 
and  Arkansas  loas  the  forxi.m.  The  lessee  consigned  the  crop  to  a  creditor  of 
his  in  Louisiana,  to  whom  he  had  given  a  deed  of  trust  upon  his  crops  to  se- 
cure advances,  the  creditor  having  no  notice  of  the  lien  for  rent.  The  lessor 
sought  in  Arkansas  to  enjoin  the  trustee  in  the  deed  of  trust  from  selling  the 
crops,  but  the  Supreme  Court  held  that  the  title  obtained  by  the  Louisiana 
consignees  was  superior  to  the  lien  for  rent  conferred  by  the  Arkansas  statutes. 
If  Louisiana  had  been  the  forum,  the  rationale  of  this  decision  would  be  easily 
discernible.  But  with  the  suit  brought  in  an  Arkansas  court  (a  federal  court, 
it  is  true,  but  none  the  less  sitting  to  enforce  the  municipal  law  of  Arkansas), 
and  the  chattels  situated  there  at  the  time  the  lien  attached,  it  is  difficult  to 
discern  the  principle  upon  which  the  decision  was  reached.  The  fact  that  the 
lien  was  statutory  and  not  contractual  might  be  a  good  reason  for  not  giving 
it  an  exterritorial  effect ;  but  why  should  it  not  have  been  recognized  is 
Arkansas  ? 


310       VOLUNTARY   ASSIGNMENTS   FOR   CREDITORS.      §  133 

case  of  statutory  assignments  to  assignees  in  bankruptcy  and 
insolvency.  It  is  our  purpose  here  to  examine  the  law  regu- 
lating the  former  class  only.  The  latter  subject  will  be  dis- 
cussed hereafter.^  Suffice  it  to  say  that  the  distinction  between 
the  two  is  clearly  recognized  by  most  of  the  decisions.* 

For  the  very  reason  that  these  assignments  are  voluntary  and 
contractual,  they  are  subject  to  principles  analogous  to  those 
controlling  absolute  conveyances  and  transfers  of  personalty, 
save  only  that,  since  they  are  primarily  made  for  the  benefit  of 
creditors,  questions  as  to  the  rights  of  the  grantor's  creditors 
are  much  more  likely  to  arise  than  in  cases  of  absolute  transfer. 
But  here,  as  there,  the  general  leading  principle  is  that  the  lex 
loci  contractus  is  the  "proper  law"  to  regulate  the  transfer, 
though  the  property  conveyed  thereby  is  situated  elsewhere, 
except  when  the  enforcement  of  the  lex  loci  contractus  would 
contravene  the  established  policy  of  the  actual  situs  and  forum, 
or  would  result  in  injury  or  injustice  to  its  citizens.*  It  is  also 
true  here,  as  there,  that  many  of  the  decisions  use  language 
indicating  that  it  is  the  lex  domicilii,  not  the  lex  loci  con- 
tractus, that  is  the   "proper  law."     But  it  is  believed  that  in 

1  See  post,  §§  137,  138. 

2  Crapor.  Kelly,  16  Wall.  610,  622;  Barnett  r.  Kinney,  147  U.  S.  476, 
481 ;  Williams  v.  Dry  Goods  Co.,  4  Okl.  145,  43  Pac.  1148,  1150,  1151  ;. 
Frank  v.  Bobbitt,  155  Mass.  112,  115  ;  May  v.  Wannemacher,  111  Mass.  202, 
208  ;  May  v.  Bank,  122  111.  551,  13  N.  E.  806,  807  ;  Barth  v.  Backus,  140 
N.  Y.  230,  235  ;  Moore  v.  Willett,  35  Barb.  (N.  Y.)  663  ;  Long  v.  Girdwood, 
150  Penn.  St.  413,  24  Atl.  711,  23  L.  R.  A.  33,  note;  Speed  v.  May,  17 
Penn.  St.  91,  94,  55  Am.  Dec.  540  ;  Milne  v.  Moreton,  6  Binn.  (Penn.)  353,. 
361,  369,  6  Am.  Dec.  466;  Butler  w.  Wendell,  57  Mich.  62,  23  N.W.  460, 
462,  58  Am.  Rep.  329  ;  Egbert  v.  Baker,  58  Conn.  319,  20  Atl.  466,  467  ; 
Hervey  v.  Edens,  66  Tex.  420,  6  S.  W.  306,  309 ;  Walters  v.  Whitlock,  9  Fla. 
86,  76  Am.  Dec.  607,  608. 

8  Barnett  v.  Kinney,  147  U.  S.  476;  Frank  v.  Bobbitt,  155  Mass.  112, 
115  ;  May  v.  Wannemacher,  111  Mass.  202,  208  ;  Williams  v.  Dry  Goods  Co., 
4  Okl.  145,  43  Pa«.  1148,  1150  ;  Butler  v.  Wendell,  57  Mich.  62,  58  Am. 
Rep.  329,  23  N.  W.  460,  462;  Egbert  v.  Baker,  58  Conn.  319,  20  Atl.  466; 
In  re  Dalpay,  41  Minn.  532,  43  N.  W.  564 ;  Law  v.  Mills,  18  Penn.  St.  185  ; 
Speed  V.  May,  17  Penn.  St.  91,  94,  55  Am.  Dec.  540 ;  Fuller  v.  Steiglitz,  27 
Ohio  St.  355,  22  Am.  Rep.  312 ;  Walters  v.  Whitlock,  9  Fla.  86,  76  Am.  Dec. 
607;  Schuler  v.  Israel,  27  Fed.  851 ;  Atherton  Co.  v.  Ives,  20  Fed.  894. 


§  133      VOLUNTARY  ASSIGNMENTS   FOB   CREDITORS.       31] 

b11  these  cases  the  assignment  was  made  at  the  domicil,  or  else 
the  statement  is  a  mere  dictum,* 

Furthermore,  if  land  situated  abroad  is  the  subject  of  the 
assignment,  notwithstanding  the  general  principle  that  the  lex 
situs  governs  the  validity  and  effect  of  all  transfers  of  real 
estate,  the  better  opinion  is  that,  so  far  as  the  mere  effect  of  the 
assignment  as  such  is  concerned,  it  is  to  be  governed  also  by 
the  lex  loci  contractus.  The  lex  situs  of  the  land,  it  is  true, 
will  govern  so  far  as  to  determine  the  effect  of  the  assignment 
in  operating  to  pass  the  title  to  the  assignee :  it  must  be  such  a 
conveyance,  in  respect  to  the  parties,  the  form,  and  the  sub- 
stance, as  would  operate  to  transfer  the  title  to  land  under  the 
lex  situs.  But  these  points  being  settled,  it  does  not  necessarily 
follow,  because  the  deed  would  fail  as  an  assignment  for  the 
benefit  of  creditors,  if  executed  in  the  situs  of  the  land,  that  it 
will  there  be  considered  invalid  if  valid  by  the  lex  loci  con- 
tractus. In  other  words,  its  validity  as  a  conveyance  to  pass 
title  must  be  determined  by  the  lex  situs,  but  its  effect  as  an 
assignment  is  to  be  determined  by  the  lex  loci  contractus,  unless 
the  enforcement  of  the  lex  loci  contractus  would  contravene  the 
policy  of  the  situs  (and  forum),  or  would  injure  its  citizens.® 

*  See  Cole  v.  Cunningham,  133  U.  S.  107,  128  ;  Speed  v.  May,  17  Penn. 
St.  91,  55  Am.  Dec.  540 ;  Barth  v.  Backus,  140  N.  Y.  230,  234,  235  ;  Ocker- 
man  v.  Cross,  54  N.  Y.  29,  32 ;  Guillander  v.  Howell,  35  N.  Y.  657,  658  ; 
Moore  v.  Land  Co.,  82  Md.  288,  33  Atl.  641,  642;  Fuller  v.  Steiglitz,  27 
Ohio  St.  355,  22  Am.  Rep.  312. 

6  Ante,  §  11  ;  Bentley  v.  Whittemore,  19  N.  J.  Eq.  462,  97  Am.  Dec.  671» 
675  ;  "Williams  v.  Dry  Goods  Co.,  4  Okl.  145,  43  Pac.  1148,  1151 ;  May  v. 
Bank,  122  111.  551,  13  N.  E.  806  ;  Juilliard  v.  May,  130  111.  87,  22  N.  E. 
477;  Hervey  v.  Edens,  66  Tex.  420,  6  S.  W.  306 ;  Thurston  v.  Rosenfield,  42 
Mo.  474,  97  Am,  Dec.  351 ;  Chafee  r.  Bank,  71  Me.  514,  36  Am.  Rep.  345. 
But  some  of  the  decisions  are  uncompromising  in  holding  that  the  lex  situs  of 
the  realty  is  to  control  under  all  circumstances.  See  Loving  v.  Pairo,  10  la. 
282,  77  Am.  Dec.  108;  Moore  v.  Church,  70  la.  208,  59  Am.  Rep.  439  ;  Bank 
V.  Stelling,  31  S.  C.  360,  9  S.  E.  1028.  So  far  as  principle  is  concerned,  the 
diCFerence  between  these  two  lines  of  decision  is  more  apparent  than  real.  It 
is  in  reality  a  question  of  the  construction  of  the  statutes  of  the  situs,  and  of 
the  importance  to  be  attached  to  their  policy.  Both  lines  of  decision  agree 
that  the  lex  situs  is  the  final  arbiter,  but  they  diverge  upon  the  question  as 
to  what  are  the  requirements  of  the  lex  situs  in  respect  to  foreign  assign* 


312      WHAT  CREDITORS  MAY  ATTACK  ASSIGNMENT.    §  134 

The  same  general  rule  is  also  applicable  where  the  subject  of 
the  assignment  is  a  chose  in  action.  Subject  to  the  exceptions 
already  mentioned,  the  lex  loci  contractus  is  the  ''proper  law," 
and  will  control.® 

If  at  the  time  of  the  transfer  the  property  passing  under  the 
assignment  is  situated  in  the  locus  contractus,  the  assignment 
being  good  there,  the  subsequent  removal  of  the  property  into 
another  State,  by  whose  law  the  assignment  is  invalid,  will  not 
affect  the  operation  of  the  lex  loci  contractus ;  and  it  seems  that 
this  is  true,  whether  or  not  the  assignee  has  actually  acquired 
possession  of  the  property  prior  to  the  removal.  The  union 
of  the  lex  loci  contractus  and  the  lex  situs  at  the  time  of  the 
assignment  bestows  upon  the  assignee  a  title  unimpeachable  even 
in  the  courts  of  the  State  whither  the  property  is  removed.'' 

In  the  following  sections  we  will  consider  the  cases  in  which 
the  ''proper  law  "  will  be  substituted  by  the  lex  fori  et  situs. 

§  134.  What  Creditors  may  Attack  a  Voluntary  Assign- 
ment. —  The  mere  fact  that  an  assignment,  valid  where  made, 
would  have  been  invalid  if  the  assignment  had  been  mad«  in 
the  situs,  does  not  of  itself  necessarily  lead  the  courts  of  the 
situs  to  pronounce  it  invalid.  The  lex  loci  contractus  is  the 
proper  law,  and  will  prevail,  unless  one  of  two  states  of  facts 
exists.  The  lex  fori  et  situs  may  be  substituted  for  the  proper 
law,  and  may  invalidate  an  assignment  valid  where  made 
(though  it  will  not  validate  an  assignment  invalid  where 
made)  in  the  following  cases :  (1)  Where  the  creditors  attack- 
ing the  assignment  are  citizens  of  the  forum,  and  rely  upon 

merits.  Is  the  iex  situs  to  be  applied  literally  in  the  case  of  assignments 
made  in  another  State  as  well  as  in  the  case  of  domestic  assignments,  or  is 
the  lex  situs  intended  to  apply  only  to  assignments  made  in  the  situs  ?  See 
Bentley  v.  Whittemore,  19  N.  J.  Eq.  462,  97  Am.  Dec.  671,  675  ;  Chafee  v. 
Bank,  71  Me.  514,  36  Am.  Rep.  345,  351. 

6  Black  V.  Zacharie,  3  How.  483,  511  ;  Butler  v.  "Wendell,  57  Mich.  62,  23 
N.  "W.  460,  58  Am.  Rep.  329 ;  Ingraham  v.  Geyer,  13  Mass.  146  ;  Speed  v. 
May,  17  Penn.  St.  91,  55  Am.  Dec.  540  ;  Woodward  v.  Brooks,  128  111.  222, 
20  N.  E.  685  ;  Egbert  v.  Baker,  58  Conn.  319,  20  Atl.  466  ;  Askew  v.  Bank, 
83  Mo.  366,  53  Am.  Rep.  590  ;  In  re  Dalpay,  41  Minn.  532,  43  N.  W.  564. 

T  May  V.  Wannemacher,  111  Mass.  202,  209;  Moore  v.  Willett,  35  Barb. 
(N.Y.)  663,  665;  Vamum  v.  Camp,  1  Gr.  L.  (N.  J.)  326,  25  Am.  Dec.  476. 


§  134     WHAT  CBEDITORS  MAY  ATTACK  ASSIGNMENT.      318 

the  lex  fori  as  applicable  to  the  transfer;  (2)  Where  the  enforce* 
ment  of  the  lex  loci  contractus  would  contravene  a  pronounced 
policy  of  the  forum.  The  first  case  is  but  one  instance  of  the 
second,  and  they  frequently  merge  into  each  other;  but  for  the 
purposes  of  discussion  here,  they  will  be  treated  separately. 

With  respect  to  the  first  of  these  cases,  it  may  be  said  that  if 
the  lex  fori  et  situs  invalidates  an  assignment  valid  where  made, 
the  policy  of  the  law  of  the  situs  is  at  the  very  least  to  protect 
creditors  who  are  its  own  citizens.  It  may  or  it  may  not  intend 
to  extend  this  protection  to  citizens  of  other  States  also,  but  it 
always  goes  to  the  former  extent.  Otherwise  there  would  be  no 
object  in  invalidating  the  assignment.  Hence  there  will  be 
found  but  few  cases  which,  as  against  resident  creditors,  sup- 
port a  voluntary  assignment  declared  invalid  by  the  lex  fori  et 
situs,  though  valid  by  the  lex  loci  contractus.^  The  overwhelm- 
ing current  of  authority  is  to  the  effect  that  resident  creditors 
may  always  take  advantage  of  the  invalidity  (under  the  lex  fori 
et  situs)  of  an  assignment  validly  executed  elsewhere.' 

1  See  Speed  v.  Maj,  17  Penn.  St.  91,  55  Am.  Dec.  540  ;  Law  v.  Mills,  18 
Fenn.  St.  185 ;  Train  v.  Kendall,  137  Mass.  366 ;  which  seem  to  go  to  this 
extreme  in  favor  of  the  lex  loci  contractus.  In  the  following  cases  the  lex 
loci  contractus  and  the  lex  fori  et  situs,  despite  minor  differences,  were  re- 
garded as  substantially  similar,  and  hence  resident  creditors  were  denied 
relief,  though  some  of  them  contain  dicta  to  the  effect  that  resident  and  non- 
resident creditors  should  always  be  placed  upon  the  same  footing.  Atherton 
Co.  V.  Ives,  20  Fed.  894 ;  Askew  v.  Bank,  83  Mo.  366,  53  Am.  Rep.  590 ; 
Fuller  V.  Steiglitz,  27  Ohio  St.  355,  22  Am.  Rep.  312  ;  Law  v.  Mills,  18  Penn. 
St.  185  ;  First  Nat.  Bank  v.  Walker,  61  Conn.  154,  23  At].  696.  The  last 
case  did  not  involve  conflicting  titles  under  different  laws,  but  merely  superi- 
ority or  priority  of  title.  The  point  in  that  case  was  whether  a  creditor  domi- 
ciled in  Connecticut,  having  notice  of  an  assignment  made  in  New  York,  could 
attach  goods  in  Connecticut  embraced  in  the  assignment.  It  was  held  that  he 
could  not. 

2  Bamett  v.  Kinney,  147  U.  S.  476,  481 ;  Frank  v.  Bobbitt,  155  Mass.  112  ; 
Faulkner  v.  Hyman,  142  Mass.  53,  54,  55 ;  Zipcey  t'.  Thompson,  1  Gray  (Mass.), 
243  ;  May  v.  Bank,  122  111.  551,  13  N.  E.  806 ;  Woodward  v.  Brooks,  128  111. 
222,  20  N.  E.  685 ;  Juilliard  v.  May,  130  111.  87,  22  N.  E.  477 ;  Vamum  v. 
Camp,  1  Gr.  L.  (N.  J.)  326,  25  Am,  Dec.  476 ;  Bentley  v.  Whittemore,  19 
N.  J.  Eq.  462,  97  Am.  Dec.  671,  677  ;  Green  v.  Iron  Works,  49  N.  J.  Eq.  48, 
23  Atl.  498 ;  Walters  r.  Whitlock,  9  Fla.  86,  76  Am.  Dec.  607 ;  Egbert  v. 
Baker,  58  Conn.  319,  20  Atl.  466,  467 ;  Williams  v.  Dry  Goods  Co.,  4  OkL 


314      WHAT  CREDITORS  MAY  ATTACK  ASSIGNMENT.     §  134 

Whether  or  not  non-resident  creditors  will  be  accorded  the 
same  privilege  is  to  be  determined,  in  the  absence  of  express 
legislative  provision,  by  the  policy  of  the  statutes  of  the  forum 
in  the  particular  case.  It  is  impossible  to  lay  down  any  general 
rules  by  which  this  can  be  decided.  The  statute,  its  language, 
provisions,  purposes,  scope,  etc.,  are  all  elements  which  must  be 
reckoned  with  in  determining  the  policy  of  the  forum.  More 
usually,  perhaps,  the  policy  of  such  statutes  is  held  to  be  con- 
fined to  the  protection  of  domestic  creditors  only.  But  many 
cases  treat  the  policy  indicated  by  the  statutes  of  the  forum 
with  such  respect,  when  markedly  opposed  to  the  lex  loci  con- 
tractus, as  to  substitute  the  lex  fori  et  situs  for  the  lex  loci 
contractus  in  all  cases,  regardless  of  the  citizenship  of  the 
attacking  creditors.* 

Some  of  the  courts  also  distinguish  between  cases  where  the 
attacking  creditors  are  citizens  of  the  loctis  contractus  and  where 
they  are  citizens  of  the  forum  or  of  third  States.  These  cases, 
though  giving  the  benefit  of  the  lex  fori  et  situs  to  creditors 
generally,  whether  resident  in  the  forum  or  not,  refuse  it  to  the 
citizens  of  the  locus  contractus,  and  require  that  their  rights 
should  be  determined  by  their  own  law.*  It  is  difficult  to  see 
any  sound  basis  for  this  rule  save  perhaps  some  general  princi- 

145,  43  Pac.  1148,  1151  ;  Hervey  v.  Edens,  66  Tex.  420,  6  S.  W.  306,  309; 
Chafee  v.  Bank,  71  Me.  514,  36  Am.  Rep.  345 ;  Bacon  v.  Home,  123  Penn. 
St.  452,  16  Atl.  794 ;  Thurston  v.  Eosenfield,  42  Mo.  474,  97  Am.  Dec.  351 ; 
Sheldon  v.  Wheeler,  32  Fed.  773 ;  Schuler  v.  Israel,  27  Fed.  85. 

'  Instances  of  this  view  taken  of  the  supreme  importance  of  the  domestic 
policy  may  be  found  in  the  following  cases  :  Atherton  Co.  v.  Ives,  20  Fed. 
894  ;  Barth  v.  Backus,  140  N.  Y.  230;  Woodward  v.  Brooks,  128  111.  222,  20 
N.  E.  685,  686  ;  First  Nat.  Bank  v.  Walker,  61  Conn.  154,  23  Atl.  696  ; 
Chafee  v.  Bank,  71  Me.  514,  36  Am.  Rep.  345  ;  Ramsey  v.  Stevenson,  5  Mart 
(La.)  23,  12  Am.  Dec.  468  ;  Ex  parte  Dickinson,  29  S.  C.  453,  7  S.  E.  593; 
Bank  v.  Stelling,  31  S.  C.  360,  9  S.  E.  1028. 

*  See  Barnett  v.  Kinney,  147  U.  S.  476,  481 ;  Cole  v.  Cunningham,  133 
U.  S.  107,  128,  129  ;  Halsted  v.  Straus,  32  Fed.  279  ;  Williams  v.  Diy  Goods 
Co.,  4  Okl.  145,  43  Pac.  1148,  1150  ;  Woodward  v.  Brooks,  128  111.  222,  20 
N.  E.  685  ;  Richardson  v.  Leavitt,  1  La.  Ann.  430,  45  Am.  Dec.  90 ;  Faulkner 
V.  Hyman,  142  Mass.  53,  55  ;  May  v.  Wannemacher,  111  Mass.  202,  209  ; 
Whipple  V.  Thayer,  16  Pick.  (Mass.)  25,  2«  Am.  Dec.  626  ;  In  re  Dalpay,  41 
Minn.  532,  43  N.  W.  564,  566. 


I  134    WHAT  CREDITORS  MAY  ATTACK  ASSIGNMENT.      315 

pie  of  estoppel.*  But  such  an  explanation  loses  sight  of  the 
fact  that  it  is  the  policy  of  the  forum  which  is  to  he  enforced 
by  its  courts.  That  policy,  it  would  seem  clear,  would  gener- 
ally be  intended  to  apply  to  the  protection  either  of  residents  of 
the  forum  only,  or  of  all  creditors,  regardless  of  citizenship. 
It  would  be  highly  improbable  that  the  legislature,  in  enacting 
the  statute,  intended  to  create  a  shifting  rule,  applicable  to  some 
non-resident  creditors  and  not  to  others ;  and  no  such  presump- 
tion should  be  made,  without  plain  evidence  that  such  is  the 
legislative  intent.  The  better  view  is  that  all  non-resident 
creditors  should  be  placed  upon  the  same  footing,  whether  they 
reside  in  the  locus  contractus  or  in  third  States,  to  be  either  all 
included  in,  or  all  excluded  from,  the  operation  of  the  lex  fori 
et  situs,  according  as  the  circumstances  point  to  one  or  the  other 
•course  as  that  contemplated  by  the  policy  of  the  forum.' 

The  above  principles  are  applicable  to  assignments  valid 
where  made,  but  which,  if  executed  in  the  forum,  would  be  in- 
valid as  against  creditors.  But  some  of  the  courts  have  gone 
further,  holding  that,  although  the  assignment  is  not  incon- 
sistent either  with  the  lex  fori  et  situs  or  the  lex  loci  contractus, 
the  mere  fact  that  it  is  a.  foreign  assignment  will  be  sufficient  to 
entitle  creditors  resident  in  the  forum  to  attach  the  property 
thereby  transferred,  on  the  ground  that  resident  creditors  are 
entitled  to  payment  out  of  property  in  the  forum,  before  it  can 
be  taken  out  of  the  State  to  be  distributed  according  to  a  foreign 
law.''  But  the  great  weight  of  authority  is  in  favor  of  the  rule 
that  the  title,  once  validly  vested  by  the  lex  loci  contractus  in 

'  See  Faulkner  v.  Hyman,  1 42  Mass.  53,  55. 

6  See  Green  v.  Van  Buskirk,  5  Wall.  307 ;  s.  c.  7  Wall.  139  ;  Barth  v. 
Backus,  140  N.  Y.  230,  238 ;  Warner  v.  Jaffray,  96  N.  Y.  248 ;  Moore  v. 
Church,  70  la.  208,  59  Am.  Rep.  439  ;  Chafee  v.  Bank,  71  Me.  514,  36  Am. 
Rep.  345,  349  ;  Vamum  v.  Camp,  1  Gr.  L.  (N.  J.)  326,  25  Am.  Dee.  476, 
487  ;  Ramsey  v.  Stevenson,  5  Mart.  (La.)  23,  12  Am.  Dec.  468  ;  Atherton  Co. 
V.  Ives,  20  Fed.  894.  See  Hibernia  Nat.  Bank  v.  Lacombe,  84  N.  Y.  367.  It 
is  probably  otherwise,  if  the  transfer  is  by  operation  of  law.  See  post,  §  138  ; 
ante,  §  118. 

T  Fox  r.  Adams,  5  Me.  245 ;  Woodward  v.  Brooks,  128  111.  222,  20  N.  E. 
685,  686  ;  Holmes  v.  Remsen,  20  Johns.  (N.  Y.)  255,  265,  11  Am.  Dec.  269 .• 
Ingraham  v.  (Jeyer,  13  Mass.  146. 


316  ASSIGNMENTS  —  PREFERENCES,   ETC.  §  135 

the  assignee  by  the  voluntary  and  contractual  act  of  the  owner 
(it  is  otherwise  in  the  case  of  involuntary  assignments  in  bank- 
ruptcy '),  and  not  invalidated  by  the  lex  fori  et  situs,  is  not 
subject  to  impeachment  by  creditors  resident  in  the  forum  or 
elsewhere,  merely  because  the  contract  is  made  abroad.  The 
assignment  is  here  made  in  the  exercise  of  the  owner's  jus  dis- 
ponendi,  which  should  receive  exterritorial  recognition,  save 
when  the  disposition  is  prohibited  by  the  lex  fori.^ 

§  135.  Policy  of  the  Forum.  —  Although  the  invalidity  of 
a  foreign  assignment  under  the  lex  fori  et  situs  will  suffice  in 
general  to  defeat  the  assignment,  so  far  as  residents  of  the  forum 
are  concerned,  it  does  not  necessarily  follow  that  the  lex  fori  et 
situs  will  be  substituted  in  behalf  of  non-resident  creditors  also. 
Whether  or  not  this  result  will  follow  will  depend  upon  the  con- 
struction placed  by  the  courts  of  the  forum  upon  the  policy  of 
its  laws.  And  this  in  turn  will  depend  in  large  measure  upon 
the  language  and  scope  of  the  domestic  statutes. 

Perhaps  the  most  usual  objection  that  has  been  taken  under 
the  lex  fori  to  voluntary  assignments  valid  in  the  locus  con- 
tractus is  upon  the  ground  of  preferences  of  creditors. 

Under  these  circumstances,  the  lex  fori  et  situs  will  generally 
be  substituted  for  the  proper  law,  as  respects  resident  creditors, 
and  the  assignment  will  be  regarded  as  ineffectual  as  to  them.^ 
But  even  as  to  resident  creditors,  if  the  lex  fori  does  not  render 
the  assignment  void  because  of  preferences,  but  merely  provides 
in  such  case  that  the  assignment  shall  be  regarded  as  made  for 
the  benefit  of  all   creditors  equally   or  pro  rata,    it  has  been 

8  See  post,  §§  137,  138. 

9  Crapo  V.  Kelly,  16  Wall.  610,  622  ;  Walters  v.  Whitlock,  9  Fla.  86,  76 
Am.  Dec.  607,  612  ;  Askew  v.  Bank,  83  Mo.  366,  53  Am.  Rep.  590  ;  Train  v. 
Kendall,  137  Mass.  366  ;  Fuller  v.  Steiglitz,  27  Ohio  St.  355,  22  Am.  Rep. 
312  ;  Atherton  Co.  v.  Ives,  20  Fed.  894 ;  Law  v.  Mills,  18  Penn.  St.  185  ; 
Ockerman  v.  Cross,  54  N.  Y.  29  ;  Cook  v.  Van  Horn,  87  Wis.  291,  50  N.  W. 
893  ;  First  Nat.  Bank  v.  Walker,  61  Conn.  154,  23  Atl.  696. 

1  Varnum  v.  Camp,  1  Gr.  L.  (N.  J.)  326,  25  Am.  Dec.  476  ;  Bentley  v. 
Whittemore,  19  N.  J.  Eq.  462,  97  Am.  Dec.  671,  674  ;  Green  v.  Iron  Works, 
49  N.  J.  Eq.  48,  23  Atl.  498  ;  Williams  v.  Dry  Goods  Co.,  4  Okl.  145,  43  Pac. 
1148  ;  Zipcey  v.  Thompson,  1  Gray  (Mass.),  243  ;  Bryan  v.  Brisbin,  26  Mo. 
423,  72  Am.  Dec.  219 


§  135  ASSIGNMENTS  —  PREFERENCES,   ETC.  317 

sometimes  held  that  the  lex  loci  contractus  should  prevail.' 
The  reason  is  that  the  policy  of  the  forum  in  such  cases  is  not 
sufficiently  pronounced  to  justify  the  courts  of  the  forum  iu 
substituting  the  lex  fori  for  the  proper  law.  But  it  seems  that 
if  the  property  conveyed  is  real  estate,  any  material  departure 
from  the  lex  situs  in  this  respect  will,  as  against  resident  cred- 
itors, invalidate  the  assignment.^ 

With  respect  to  non-resident  creditors,  much  more  latitude 
is  shown  in  enforcing  the  assignment  according  to  the  lex  loci 
contractus.  Indeed  the  lex  fori  must  very  clearly  include 
within  its  protecting  scope  all  creditors  and  all  transactions 
wherever  executed  relating  to  the  property  situated  within  its 
jurisdiction,  in  order  for  it  to  override  the  lex  loci  contractus 
with  respect  to  others  than  residents.  The  presumption  is  that 
it  is  intended  to  apply  only  to  assignments  made  within  its  own 
limits  or  for  the  protection  of  its  own  citizens.* 

These  principles  apply  to  other  regulations  of  the  forum  as 
well  as  to  those  relating  to  preferences  of  creditors.    Thus  where 

2  Atherton  Co.  v.  Ives,  20  Fed.  394  ;  Law  v.  Mills,  18  Penn.  St.  185  ; 
Ockerman  v.  Cross,  54  N.  Y.  29.  See  Bamett  r.  Kinney,  147  U.  S.  476  ; 
Varnum  v.  Camp,  1  Gr.  L.  (N.  J. )  326,  25  Am.  Dec.  476. 

3  Williams  v.  Dry  Goods  Co.,  4  Okl.  145,  43  Pac.  1148  ;  Bentley  v.  "Whit- 
temore,  19  N.  J.  Eq.  462,  97  Am.  Dec.  671  ;  Chafee  v.  Bank,  71  Me.  514, 
36  Am.  Rep.  345  ;  Hervey  v.  Edens,  66  Tex.  420,  6  S.  W.  306.  See  Moore 
V.  Church,  70  la.  208,  59  Am.  Rep.  439  ;  Loving  v.  Pairo,  10  la.  282,  77  Am. 
Dec.  108 ;  Bank  r.  Stelling,  31  S.  C.  360,  9  S.  E.  1028. 

*  Bamett  v.  Kinney,  147  U.  S.  476  ;  Williams  v.  Dry  Goods  Co.,  4  OkL 
145,  43  Pac.  1148  ;  Bentley  v.  Whittemore,  19  N.  J.  Eq.  462,  97  Am.  Dec. 
671,  677  ;  Frank  v.  Bobbitt,  155  Mass.  112  ;  May  v.  Bank,  122  111.  551,  13 
N.  E.  806  ;  Egbert  v.  Baker,  58  Conn.  319,  20  Atl.  466  ;  Thurston  v.  Rosen- 
field,  42  Mo.  474,  97  Am.  Dec.  351  ;  Law  v.  Mills,  18  Penn.  St.  185  ;  Speed 
V.  May,  17  Penn.  St.  91,  55  Am.  Dec.  540 ;  Chafee  v.  Bank,  71  Me.  514,  36 
Am.  Rep.  345.  An  example  of  a  domestic  policy  so  pronounced  as  to  override 
the  lex  loci  contractus  altogether  will  be  found  in  Ex  parte  Dickinson,  29  S.  C. 
453,  7  S.  E.  593,  in  which  a  foreign  assignment  of  personalty  was  avoided 
as  to  non-resident  creditors  under  the  lex  fori  which  provided  that  any  as- 
signment by  an  insolvent  debtor  containing  preferences  should  be  absolutely 
void.  See  also  Douglas  v.  Bank,  97  Tenn.  133,  36  S.  W.  874.  Other  exam- 
ples may  be  found  in  some  of  the  cases  involving  real  estate.  Bank  v.  Stell- 
ing, 31  S.  C.  360,  9  S.  E.  1028  ;  Moore  v.  Church,  70  la.  208,  59  Am.  Rep.  439. 
But  see  Atherton  Co.  u.  Ives,  20  Fed.  894. 


318  ASSIGNMENTS  —  PREFERENCES,   ETC.  §  135 

the  lex  fori  prescribes  that  assignments  must  be  recorded,  un- 
recorded foreign  assignments,  valid  and  effectual  to  pass  title 
to  the  assignee  where  made,  have  been  sustained  or  set  aside 
according  to  the  view  of  the  particular  court  touching  the  scope 
of  the  domestic  policy.  The  tendency  is  in  favor  of  upholding 
the  assignment,  where  non-resident  creditors  are  concerned.^ 

So  the  question  whether  an  assignment  is  invalid  as  fraudu- 
lent per  se,  because  of  reservations  and  conditions  contained  in 
the  deed,  is  to  be  decided  by  the  same  principles.'  And  so  with 
respect  to  the  effect  upon  the  validity  of  the  assignment  of  a 
failure  of  creditors  to  consent  thereto.^ 

6  Williams  v.  Dry  Goods  Co.,  4  Okl.  145,  43  Pac.  1148  ;  Warner  r.  JafiFray, 
96  N.  Y.  248  ;  Speed  v.  May,  17  Penn.  St.  91,  55  Am.  Dec.  540  ;  Birdseye  v. 
Underhill,  82  Ga.  142,  7  S.  E.  863  ;  Butler  v.  Wendell,  57  Mich.  62,  23  N.  W. 
460,  58  Am.  Rep.  329 ;  Cook  v.  Van  Horn,  87  Wis.  291,  50  N.  W.  893.  See 
Douglas  V.  Bank,  97  Tenn.  133,  36  S.  W.  874  ;  Rice  v.  Courtis,  32  Vt.  460, 
78  Am.  Dec.  597. 

«  Woodward  v.  Brooks,  128  111.  222,  20  N.  E.  685 ;  Livermore  v.  Jenckes, 
21  How.  126  ;  Rice  v.  Courtis,  32  Vt.  460,  78  Am.  Dec.  597 ;  Moore  v.  Wil- 
lett,  35  Barb.  (N.  Y.)  663  ;  Graves  «;.  Roy,  13  La.  454,  33  Am.  Dec.  568  ; 
Ramsey  v.  Stevenson,  5  Mart.  (La.)  23,  12  Am.  Dec.  468  ;  Railroad  Co.  v. 
Glenn,  28  Md.  287,  92  Am.  Dec.  688.  See  Wattson  v.  Campbell,  35  N.  Y. 
153;  Gardner  v.  Lewis,  7  GiU  (Md.),  378,  393,  398. 

'  Frank  r.  Bobbitt,  155  Mass.  112  ;  Faulkner  v.  Hyman,  142  Mass.  (3  ; 
May  r  Wannemacher,  111  Mass.  203. 


§136        INVOLUNTARY  TRANSFERS     -MARRIAGE.  319 


CHAPTER  XII. 

INVOLUNTARY  TRANSFERS  OF  PERSONALTY  INTER  VIVOS 

§  136.  Transfers  by  Marriage.  —  We  have  already  observed 
time  and  again  the  distinction  between  voluntary  and  involun- 
tary transfers.  In  the  former  case,  except  where  the  actual 
situs  of  the  property  is  the  forum  and  there  is  ground  to  substi- 
tute the  lex  fori,  the  legal  situs  of  the  chattels  is  to  be  referred 
to  the  actual  situs  of  the  owner  at  the  time  of  the  transfer,  and 
the  lex  loci  contractus  becomes  the  "proper  law."  In  the  case 
of  involuntary  transfers  by  operation  of  law,  on  the  other  hand, 
the  legal  situs  of  the  chattels  is  to  be  referred  to  the  legal  situs 
(or  domicil)  of  the  owner  at  the  time  of  the  transfer,  and  the  lex 
domicilii  becomes  the  "proper  law;  "  subject  to  be  substituted 
by  the  lex  fori  et  situs  of  the  chattels,  wherever  the  policy  of 
the  forum  requires  it. 

To  this  class  of  involuntary  transfers  by  operation  of  law 
belong  those  transfers,  which  take  place  under  some  laws,  of  the 
personal  property  of  one  consort  to  the  other  upon  marriage. 
Thus  the  common  law  conferred  upon  the  husband  an  absolute 
title  to  the  chattels  of  the  wife  immediately  upon  the  marriage, 
and  a  similar  title  to  her  choses  in  action,  provided  he  reduced 
them  into  possession  during  the  coverture.  By  the  Roman  law 
the  property  of  the  consorts  was  held  in  community.  Numerous 
variations  of  these  rules,  as  well  as  some  entirely  distinct,  exist 
in  the  various  States,  and  it  becomes  important  to  observe  the 
law  which  properly  governs  the  rights  of  the  consorts  in  the 
personalty  of  each  other. 

These  transfers,  and  the  law  properly  governing  them,  have 
already  been  discussed  in  preceding  sections,  where  they  were 
regarded  in  the  aspect  of  incidents  of  the  marriage  status,  and 
we  there  saw  that  the  lex  domicilii  of  the  parties  at  the  time  the 


320      INVOLUNTARY  TRANSFERS   IN   BANKRUPTCY.     §  13T 

property  was  acquired  is  (independently  of  nuptial  agreement) 
the  '* proper  law"  to  control  the  rights  of  the  parties.^  Re- 
garding them  now  in  the  aspect  of  involuntary  transfers  by  opera- 
tion of  law,  exactly  the  same  result  is  reached.  The  discussion 
of  the  principles  involved  need  not  be  repeated  here. 

§  137.  Involuntary  Assignments  in  Bankruptcy  or  Insol- 
vency. —  In  cases  of  bankruptcy,  where  bankrupt  or  insolvent 
laws  prevail,  the  property  of  the  insolvent  is  transferred  by 
order  of  court  or  by  operation  of  law,  for  the  benefit  of  all  the 
creditors,  to  an  assignee,  who  stands  to  a  certain  extent  in  the 
shoes  of  the  insolvent  debtor. 

The  primary  object  of  such  laws  is  the  protection  of  cred- 
itors, and  it  is  only  where  the  assignment  takes  place  at  their 
instance  that  it  can  be  termed  ''involuntary."  In  this  respect, 
such  transfers  differ  from  ordinary  transfers  in  invitum,  like 
transfers  upon  marriage,  the  primary  purpose  of  which  is  not 
the  protection  of  creditors  or  third  persons. 

Whether  the  voluntary  feature  which  appears  in  some  bank- 
rupt laws  is  to  be  referred  to  this  head  or  to  that  of  voluntary 
transfers  of  personalty,  is  not  entirely  settled,^  and  in  the  suc- 
ceeding discussion  it  will  be  left  out  of  consideration. 

The  question  now  to  be  examined  is  the  effect  to  be  given  in 
other  States  to  an  involuntary  assignment  in  bankruptcy  or  in- 
solvency in  the  State  of  the  insolvent's  domicil;  whether  or  not 
it  is  to  be  deemed  of  universal  obligation,  so  as  to  transfer  to 
the  assignee  the  insolvent's  movable  property  wherever  situated, 
and  thus  withdraw  it  from  the  reach  of  creditors  in  the  courts 
of  the  actual  situs. 

1  Ante,  §§  80-82. 

1  See  Egbert  v.  Baker,  58  Conn.  319,  20  Atl.  466 ;  Barth  v.  Backus,  140 
N.  Y.  230  ;  May  v.  Wannemacher,  111  Mass.  202,  209;  Harvey  v.  Edens,  66 
Tex.  420,  6  S.  W.  306,  309  ;  Butler  v.  Wendell,  57  Mich.  62,  58  Am,  Rep. 
329,  23  "N".  W.  460,  462  ;  Paine  v.  Lester,  44  Conn.  196,  26  Am.  Rep.  442. 
It  would  seem  upon  principle,  since  the  bankruptcy  proceeding  even  when 
voluntary  is  in  the  nature  of  a  judicial  adjudication,  and,  as  &ach,  a  proceeding 
in  rem,  it  could  only  be  effectual  as  to  such  property  as  is  within  the  jurisdic- 
tion. Nor  can  such  a  proceeding  be  said  to  be  contractual,  since  it  is  done 
without  the  assent  of  the  creditors  whose  debts  are  thereby  released.  See 
Barth  ».  Backus,  supra. 


§  137     INVOLUNTARY  TRANSFERS   IN  BANKRUPTCY.      321 

Upon  this  point  the  English  decisions  are  directly  opposed 
to  the  overwhelming  weight  of  American  authority.  In  Eng- 
land, it  is  the  established  doctrine  that  for  the  purposes  of  a 
transfer  of  this  kind  the  owner's  chattels  wherever  situated 
must  be  presumed  to  have  their  legal  situs  at  his  domicil,  and 
therefore  the  disposition  of  them  must  be  governed  by  the  lex 
domicilii.  If  by  that  law  the  title  of  the  assignee  is  valid,  it 
must  be  so  held  everywhere,  even  as  against  creditors  resident 
in  the  actual  situs  and  forum.  ^ 

It  is  impossible  to  defend  the  position  of  the  English  courts 
upon  any  principle  of  private  international  law.  They  admit 
that  upon  the  transfer  of  personalty  by  operation  of  law  to  the 
administrator  of  a  decedent,  so  far  as  creditors  are  concerned, 
the  lex  situs  et  fori  is  to  govern  the  administration  of  the  assets, 
and  not  the  lex  domicilii.  Yet  the  assignment  in  bankruptcy 
is  perhaps  even  a  stronger  case,  for  in  the  former  case  there 
may  be  no  creditors  at  all,  whereas,  in  the  latter,  the  very  pur- 
pose and  the  only  purpose  of  the  assignment  is  the  protection 
of  creditors.  The  principle  therefore  which  induces  the  rule, 
for  the  protection  of  creditors,  that  the  transfer  of  personalty  to 
an  administrator  by  the  lex  domicilii  has  no  exterritorial  effect, 
so  long  as  creditors  in  the  situs  and  forum  remain  unsatisfied, 
would  seem  to  apply  with  even  greater  force  to  involuntary 
assignments  in  bankruptcy. 

Such  at  least  has  been  the  reasoning  of  the  American  courts. 
Although  the  great  weight  of  Chancellor  Kent's  opinion  was 
given,   in  a  masterly  decision,  in  support  of  the  English  doc- 

»  Story,  Confl.  L.  §  409  ;  Booth  v.  Clark,  17  How.  322,  336  ;  Holmes  v. 
Remsen,  4  Johns.  Ch.  (N.  Y.)  460,  8  Am.  Dec.  581;  Paine  v.  Lester,  44 
Conn.  196,  26  Am.  Rep.  442,  443.  With  respect  to  land  however,  even  in 
England,  it  seems  to  be  admitted  that  an  assignment  in  bankruptcy  will  have 
no  effect.  See  Oakley  v.  Bennett,  11  How.  33  ;  Williams  v.  Dry  Goods  Co., 
4  Okl.  145,  43  Pac.  1148,  1151  ;  Hervey  v.  Edens,  66  Tex.  420,  6  S.  W.  306 ; 
Chipman  r.  Peabody,  159  Mass.  420,  34  N.  E.  563.  In  support  of  the  Eng- 
lish view  it  is  claimed  that  the  assignment  in  bankruptcy  is  after  all  a  voltin- 
tary  assignment,  since  every  citizen  is  supposed  to  consent  to  the  laws  of  his 
country.  See  Holmes  v.  Remsen,  4  Johns.  Ch.  460,  8  Am.  Dec.  581 ;  Milne  v. 
Moreton,  6  Binn.  (Penn.)  353,  361,  6  Am.  Dec.  466.  Pari  ratione,  an 
assault  or  other  tort  is  a  breach  of  contract ! 

21 


322      INVOLUNTARY  TBANSFERS   IN  BANKRUPTCY.     §  187 

trine,*  his  view  has  been  overruled  in  this  country.  It  is  now 
thoroughly  established  in  the  United  States,  that  assignments 
in  bankruptcy  or  insolvency  of  personal  property  are  to  be  given 
no  exterritorial  force  ex  proprio  vigore.*  The  same  general 
principles  are  to  be  applied  here  as  in  the  case  of  receivers,^ 
and  administrators.® 

But  it  does  not  follow,  because  ex  proprio  vigore  the  assign- 
ment has  no  exterritorial  effect,  that  no  such  effect  is  under  any 
circumstances  to  be  accorded  it.  On  the  contrary,  except  with 
respect  to  land,  the  general  rule  of  comity  is  to  recognize  the 
title  conferred  by  the  lex  domicilii  upon  the  assignee  in  every 
State  where  the  insolvent's  property  may  be  located,  save  only 
where  the  interests  of  the  forum  or  of  creditors  require  that  it 
shall  be  disregarded.  Hence,  if  the  case  does  not  affect  cred- 
itors in  the  forum,  but  merely  relates  to  the  title  of  the  assignee 
and  his  right  to  collect  and  sue  for  debts  due  the  insolvent,  the 
transfer  to  the  assignee  under  the  lex  domicilii  is  sustained.'' 

In  Holmes  v.  Remsen,*  the  question  was  whether  a  voluntary 

8  Holmes  v.  Remsen,  4  Johns.  Ch.  460,  8  Am.  Dec.  581.  See  Blake  v. 
Williams,  6  Pick.  (Mass.)  286,  309,  17  Am.  Dec.  372  ;  Paine  v.  Lester,  44 
Conn.  196,  26  Am.  Rep.  442,  443. 

*  Milne  v.  Moreton,  6  Binn.  (Penn.)  353,  6  Am.  Dec.  466  ;  Blake  v.  "Wil- 
liams,  6  Pick.  (Mass.)  286,  308,  17  Am.  Dec.  372  ;  Crapo  v.  Kelly,  16  Wall. 
610  ;  Booth  v.  Clark,  17  How.  322 ;  Harrison  v.  Sterry,  5  Cr.  289  ;  Paine  v. 
Lester,  44  Conn.  196,  26  Am.  Rep.  442  ;  Willetts  v.  Waite,  25  N.  Y.  577, 
584,  586 ;  Barth  v.  Backus,  140  N.  Y.  230,  235  ;  McClure  v.  Campbell,  71 
Wis.  350,  37  N.  W.  343  ;  Hibernia  Nat.  Bank  v.  Lacombe,  84  N.  Y.  367  ; 
Hervey  v.  Edens,  66  Tex.  420,  6  S.  W.  306;  Sturtevant  v.  Armsby  Co.,  66 
N.  H.  557,  23  Atl.  368. 

6  Ante,  §§  117,  118.     See  Booth  v.  Clark,  17  How.  822. 

6  Ante,  §§  106,  107. 

^  Milne  v.  Moreton,  6  Binn.  (Penn.)  353,  363,  365,  6  Am.  Dec.  466  ; 
Paine  v.  Lester,  44  Conn.  196,  26  Am.  Rep.  442,  444  ;  Willetts  v.  Waite,  25 
N.  Y.  577,  583,  584 ;  Kirkland  v.  Lowe,  33  Miss.  423,  69  Am.  Dec.  355, 
356.  But  if  the  property  assigned  is  a  non-negotiable  chose  in  action,  the 
assignee  takes  only  an  equitable  title,  and  cannot  sue  thereon  in  his  own 
name  unless  the  lex  fori  permits  it.  Kirkland  v.  Lowe,  33  Miss.  423,  69  Am. 
Dec.  355,  356  ;  Milne  v.  Moreton,  6  Binn.  (Penn.)  353,  6  Am.  Dec.  466.  This 
is  in  conformity  to  the  general  principle  that  the  lex  fori  controls  the  remedy. 
See  post,  §  206. 

•  4  Johns.  Ch.  (N.  Y.)  460,  8  Am.  Dec.  581. 


§  137     INVOLUNTARY  TRANSFERS  IN  BANKRUPTCY.      323 

payment  in  England  by  a  New  York  debtor  to  the  Englisli  as- 
signee of  an  English  bankrupt  was  a  good  defence  to  a  New 
York  attachment  and  garnishment  by  an  American  creditor  of 
the  bankrupt.  Chanceller  Kent  decided  that  it  was.  Keason- 
ing  from  analogy  to  the  case  of  the  payment  of  debts  to  a  for- 
eign administrator,"  it  would  seem  that  this  decision  was  correct, 
even  supposing  (as  proved  to  be  the  case  here)  that  there  were 
creditors  to  claim  the  debt  in  the  New  York  courts.  The  pay- 
ment was  made  in  England,  the  situs  of  the  assignee's  author- 
ity. This  decision  has  been  frequently  disapproved  in  the  later 
American  cases,  in  respect  to  its  general  views  as  to  involuntary 
assignments. 

It  w^ill  be  observed  that  the  great  practical  difference  between 
voluntary  assignments  for  the  benefit  of  creditors  and  involun- 
tary assignments  in  bankruptcy,  so  far  as  their  exterritorial  e:ffect 
is  concerned,  is  that  the  former,  being  contractual  and  an  exercise 
of  the  owner's  jus  disponendi,  takes  effect  in  other  States  ex 
propria  vigore,  according  to  the  terms  of  the  disposition,  unless 
it  is  invalid  and  prohibited  by  the  lex  situs  et  fori ;  while  the 
latter,  being  the  result  merely  of  an  act  of  the  law  for  the  pro- 
tection of  creditors,  has  no  more  inherent  exterritorial  effect  than 
has  the  law  creating  it.  Any  such  effect  accorded  to  it  is  due 
merely  to  comity  and  policy,  and  neither  of  these  call  for  its 
recognition  in  other  States  whose  interests  or  policy  dictate  a 
contrary  course,  as  will  be  the  case  wherever  there  are  creditors 
there.  And  this  is  true,  though  there  be  nothing  in  the  lex 
situs  et  fori  to  invalidate  such  a  transfer,  or  even  though  the 
latter  law  be  identical  in  terms  with  the  lex  domicilii.  The 
mere  fact  that  there  are  creditors  in  the  forum  is  sufficient  to 
induce  the  courts  of  the  forum  to  disregard  the  foreign  assign- 
ment, until  the  creditors  are  satisfied." 

But  as  in  the  case  of  receivers,^^  if  the  property  is  in  the  State 
of  the  assignment  and  the  assignee  in  bankruptcy  takes  posses- 

9  Ante,  §  109. 

1°  So,  if  there  are  in  the  forum  purchasers  of  the  insolvent's  property,  with- 
out notice  of  the  assignment.  See  Willetts  v,  Waite,  25  N.  Y.  577,  684  j 
Johnson  v.  Hunt,  23  Wend.  (N.  Y.)  88. 

"  Ante,  §§  117,  118. 


324      WHAT  CREDITORS  MAY  ATTACK  ASSIGNMENT.     §  138 

sion,  the  fact  that  it  is  subsequently  found  in  another  State  will 
not  deprive  the  assignee  of  his  title  conferred  by  the  lex  dom- 
icilii and  the  lex  situs  also." 

Difficulty  is  sometimes  experienced  in  determining  whether 
a  particular  assignment  under  the  insolvent  laws  of  a  State  is 
to  be  deemed  voluntary  or  involuntary.  It  has  been  said  in 
some  cases  that  if  the  assignment  is  ''statutory,"  it  comes 
within  the  principles  above  laid  down.^*  But  this  term  is 
likely  to  mislead,  since  it  is  not  true  that  every  assignment 
regulated  by  statute  is  involuntary.  In  Barth  v.  Backus,"  it 
is  said  that  the  test  to  determine  whether  an  assignment  shall 
be  given  exterritorial  effect  is  found  in  the  query  whether  or 
not  the  insolvent  is  thereby  discharged  of  all  further  liability 
for  his  debts.  And  this  is  believed  to  be  the  true  test;  for 
even  though  the  assignment  in  such  a  case  is  a  voluntary  act 
on  his  part  it  is  not  voluntary  on  the  part  of  the  creditors,  who 
are  thereby  compelled  to  release  their  debts.  The  assignment 
is  not  contractual,  for  only  one  party  enters  into  it  willingly. 
And  of  course  if  the  act  is  not  that  of  the  owner,  but  through 
the  intervention  of  a  court  or  officer  appointed  by  law,  it  is  an 
involuntary  assignment.^^ 

§  138.  Creditors  for  -whose  Benefit  Assignment  disregarded. 
—  Nothing  in  connection  with  this  subject  is  better  settled  than 
that  transfers  in  bankruptcy  or  insolvency  have  no  exterritorial 
force,  so  far  as  concerns  debts  due  the  State  of  the  situs  and 
forum  in  the  shape  of  taxes,  etc.,^  or  due  to  residents  of  that 

w  Crapo  V.  Kelly,  16  Wall.  610,  622.  627;  Cole  v.  Cunningham,  133  U.  S. 
107,  128;  May  v.  Wannemacher,  111  Mass.  202,  209  ;  Willetts  v.  Waite,  25 
N.  Y.  577,  584  ;  Plestorou.  Abraham,  1  Pai.  Ch.  (N.  Y.)  236  ;  Smith  v.  Eaton, 
36  Me.  298,  58  Am.  Dec.  746,  749. 

18  Hervey  v.  Edens,  66  Tex.  420,  6  S.  W.  306,  309  ;  Frank  v.  Bobbitt,  155 
Mass.  112;  Paine  v.  Lester,  44  Conn.  196,  26  Am.  Rep.  442,  445  ;  Butler  v. 
Wendell,  57  Mich.  62,  58  Am.  Rep.  329,  23  N.  W.  460,  462. 

"  140  N.  Y.  230,  237. 

»  See  May  v.  Bank,  122  111.  551,  13  N.  E.  806,  807 ;  Kirkland  v.  Lowe, 
33  Miss.  423,  69  Am.  Dec.  355 ;  Butler  v.  Wendell,  57  Mich.  62,  58  Am. 
Bep.  329;  Willetts  v.  Waite,  25  N.  Y.  577,  587;  Egbert  v.  Baker,  58  Conn. 
319,  20  Atl.  466  ;  May  v.  Wannemacher,  111  Mass.  202,  208,  209. 

1  Harrison  v.  Sterry,  5  Cr.  289  ;  Willetts  v.  Waite,  25  N.  Y.  577,  586. 


§  138      WHAT  CREDITORS  MAY  ATTACK  ASSIGNMENT.     325 

State.'  Nor  do  the  American  courts  stop  there.  The  current 
of  authority  is  in  favor  of  extending  the  same  privileges  to 
creditors  who  are  residents  of  third  States  and  who  desire  to 
take  advantage  of  the  remedies  afforded  by  the  situs.* 

Indeed,  some  of  the  courts  have  gone  so  far  as  to  say  that  to 
hold  a  foreign  assignment  invalid  as  to  the  residents  of  the 
forum,  but  valid  as  to  residents  of  other  States  of  this  Union, 
would  be  in  contravention  of  the  federal  constitution.*  Although 
this  position  cannot  be  sustained,  it  tends  to  show  how  fixed  with 
us  in  such  cases  is  the  policy  of  the  open  door  to  creditors  gener- 
ally. No  good  reason  can  be  assigned  for  not  extending  this 
liberal  policy  to  creditors  resident  in  foreign  countries  as  well 
as  in  other  States  of  this  Union  than  the  forum ;  but  though 
some  of  the  decisions  contain  statements  sufficiently  general  to 
cover  alien  creditors,  there  seem  to  be  no  direct  decisions  to 
that  effect.  On  the  contrary,  there  are  several  cases  taking 
the  opposite  view.* 

2  May  V.  Bank,  122  111.  551,  13  N.  E.  806,  807;  Cole  v.  Cunningham,  133 
U.  S.  107,  127,  128 ;  Reynolds  v.  Adden,  136  U.  S.  348  ;  Crapo  r.  KeUy,  16 
Wall.  610,  622;  Blake  v.  Williams,  6  Pick.  (Mass.)  286,  17  Am.  Dec.  372  ; 
Paine  v.  Lester,  44  Conn.  196,  26  Am.  Rep.  442,  444;  Speed  v.  May,  17  Penn. 
St.  91,  94,  55  Am.  Dec.  540  ;  Long  v.  Girdwood,  150  Penn.  St.  413,  24  AtL 
711,  23  L.  R.  A.  33  ;  Willetts  v.  Waite,  25  N.  Y.  577,  586,  587 ;  Sturtevant 
V.  Armsby  Co.,  66  N.  H.  557,  23  Atl.  368. 

«  Cole  V.  Cunningham,  133  U.  S.  107,  127;  Crapo  v.  Kelly,  16  Wall.  610, 
628 ;  Harrison  v.  Sterry,  5  Cr.  289 ;  Hibemia  Nat.  Bank  v.  Lacombe,  84 
N.  Y.  367 ;  Willetts  v.  Waite,  25  N.  Y.  577,  586  ;  Milne  v.  Moreton,  6  Binn. 
(Penn.)  353,  6  Am.  Dec.  466;  Blake  r.  Williams,  6  Pick.  (Mass.)  286,  308, 
17  Am.  Dec.  372  ;  Paine  v.  Lester,  44  Conn.  196,  26  Am.  Rep.  442,  444,  445  ; 
Barth  v.  Backus,  140  N.  Y.  230 ;  Sturtevant  v.  Armsby  Co.,  66  N.  H.  557, 
23  Atl.  368. 

*  Sturtevant  v.  Armsby  Co.,  66  N.  H.  557,  23  Atl.  368  ;  Paine  r.  Lester, 
44  Conn.  196,  26  Am.  Rep.  442,  445.  But  see  Chafee  v.  Bank,  71  Me.  514, 
36  Am.  Rep.  345. 

6  Sturtevant  u.  Armsby  Co.,  66  N.  H.  557,  23  Atl.  368  ;  Long  v.  Gird- 
wood, 150  Penn.  St.  413,  24  AtL  711,  23  L.  R.  A.  33.  The  last  case  may 
possibly  be  explained  in  some  measure  by  the  fact  that  the  assignment  oc- 
curred in  Scotland,  and  the  attaching  creditors  were  citizens  of  Canada,  both 
parts  of  the  British  Empire  ;  or  perhaps  by  the  fact  that  the  Pennsylvania 
court  considered  (as  it  apparently  did)  that  the  foreign  assignment  could  only 
be  invalidated  by  Pennsylvania  creditors  —  a  position  logical  at  least,  if  no^ 
liberal. 


826    WHAT  CREDITORS  MAY  ATTACK  ASSIGNMENT-      §  138 

But  with  respect  to  the  rights  of  creditors  who  are  residents 
of  the  State  in  which  the  assignment  takes  place,  the  courts  are 
divided.  Some  of  the  decisions  hold  that  they  should  be  bound 
by  the  laws  of  their  own  State,  and  that  they  cannot,  by  going 
into  another  State,  set  at  naught  the  work  of  their  own  law.® 

Although  this  would  seem  to  be  the  juster  and  the  wiser 
view,^  many  decisions  will  be  found  extending  the  same  privileges 
to  these  as  to  other  creditors.*  However  this  may  be,  it  is  cer- 
tain that  the  courts  of  the  State  where  the  assignment  occurs 
may  peremptorily  enjoin  its  own  citizens  from  going  abroad  to 
attach  the  property  of  the  insolvent.^ 

6  Cole  V.  Cunningham,  133  U.  S.  107,  128 ;  Livennore  v.  Jenckes,  21 
How.  126  ;  Long  v.  Girdwood,  150  Penn.  St.  413,  24  Atl.  711,  28  L.  R.  A. 
33  ;  Plestoro  v.  Abraham,  1  Pai.  Ch.  (N.  Y.)  236;  Mayu.  Wannemacher,  111 
Mass.  202,  209;  Sturtevant  v.  Armsby  Co.,  66  N.  H.  557,  23  Atl.  368,  369. 

7  In  speaking  of  a  similar  question  arising  with  respect  to  voluntary  as- 
signments (ante,  §  134,  note  6),  it  was  said  that  the  better  opinion  was  that 
the  citizens  of  the  place  of  assignment  should  be  put  on  the  same  footing  as 
the  residents  of  other  States  outside  the  forum.  There  the  question  was  one 
of  the  construction  of  the  lex  situs  et  fori.  Here  the  question  is  not  at  all  a 
question  of  statutory  construction,  but  of  jurisdiction  and  submission  to  a 
personal  law. 

8  Cole  r.  Cunningham,  133  U.  S.  107,  128  ;  May  t>.  Bank,  122  111  551,  13 
N.  E.  806  ;  Rhawn  v.  Peters,  110  111.  350  ;  Hibernia  Nat.  Bank  v.  Lacombe, 
84  N.  Y.  367  ;  Willetts  v.  Waite,  25  N.  Y.  577,  583  ;  Taylor  v.  Badonx,  92 
Tenn.  249,  21  S.  W.  522  ;  Commercial  Bank  v.  Motherwell  Co.,  95  Tenn.l72, 
31  S.  W.  1002.  See  Sturtevant  v.  Armsby  Co.,  66  N.  H.  557,  23  Atl.  368, 
369. 

»  Cole  r.  Cunningham,  133  U.  S.  107 ;  Dehon  v.  Foster,  4  Allen  (IMaas.), 
545.  It  is  otherwise,  if  the  assignment  is  wlv/ntary.  Warner  v.  Jafbny,  96 
N.  Y.  248. 


§  139  TRANSFER   BY  SUCCESSION.  327 


CHAPTER  XIII. 

TRANSFER  BY  SUCCESSION. 

§  139.   Titles  of  Administrator  and  Distributee  distinguished. 

■^  It  is  a  general  rule,  upon  the  death  intestate  of  an  owner  of 
property,  that  his  personalty  is  to  be  committed  to  an  adminis- 
trator, whose  first  duty  is  to  pay  the  decedent's  debts,  and  after 
they  are  paid  to  turn  over  the  residuum  of  the  estate  to  those 
appointed  by  law  as  his  successors  in  the  ownership  of  the  prop- 
erty, known  as  his  "distributees"  or  "  next  of  kin." 

The  title  vested  in  the  administrator,  and  subsequently  in 
the  distributees,  results  not  from  any  voluntary  act  on  the  part 
of  the  owner,  but  from  the  act  of  the  law.  Furthermore,  so  far 
as  the  administrator  is  concerned,  his  title  is  vested  in  him 
primarily  for  the  protection  of  creditors,  incidentally  only  for 
the  distribution  of  the  estate  amongst  the  next  of  kin.  With 
respect  to  its  primary  purpose,  therefore,  the  title  of  an  adminis- 
trator is  in  many  respects  analogous  to  that  of  an  assignee  ia 
involuntary  bankruptcy.^  Like  such  assignee,  the  administra- 
tor is  a  quasi-officer  of  the  law;  his  authority  and  title,  origi- 
nating in  an  act  of  the  law,  is  ex  propria  vigore  of  no  exterritorial 
force,  and  will  not,  as  to  creditors,  extend  to  personalty  situated 
elsewhere  than  in  the  State  of  his  appointment. 

The  principles  regulating  the  administration  of  a  decedent's 
estate,  including  the  law  governing  his  appointment,  title, 
powers,  duties,  and  liabilities,  have  been  already  discussed  in 
detail  at  another  place,  to  which  reference  is  now  made.* 

But  if  we  suppose  that  there  are  no  debts,  or  that  they  have 
all  been  paid,  the  administration  of  the  estate  ceases,  and  its 
distribution  commences.  It  is  the  law  governing  this  distribu- 
tion into  which  we  are  now  to  inquire. 

>  Ante,  §§  137  et  seq.  '  Ante,  §§  105  et  seq. 


328    WHO  DISTRIBUTEES  —  CAPACITY  TO  SUCCEED.     §  140 

It  is  the  well  established  general  rule  that  the  law  of  the  last 
domicil  of  the  deceased  owner  is  the  "  proper  law  "  to  govern 
the  distribution  of  his  personalty,  not  the  lex  situs  of  the  prop- 
erty (though  that  law  may  perhaps  be  applied  in  certain  excep- 
tional cases,  where  the  situs  and  the  forum  coincide) ;  nor  the 
law  of  the  owner's  domicil  at  the  time  he  acquired  the  property 
in  question;  nor  the  law  of  the  decedent's  actual  situs  at  the 
time  of  his  death.  The  transfer  is  involuntary  and  by  act  of 
the  law,  and  therefore  it  is  the  owner's  legal  situs  or  domicil 
that  furnishes  the  proper  law;  and  the  transfer  being  effected  at 
the  time  of  his  death,  it  is  his  domicil  at  that  time  that  is  to  be 
looked  to.  Hence  the  general  rule  that  the  law  of  the  last 
domicil  of  the  decedent  is  the  proper  law.* 

§  140.  Persons  to  Take  as  Distributees  —  Capacity  of  Dis- 
tributees to  Take.  —  From  what  has  been  said  in  the  preceding 
section  it  will  be  seen  that  the  classes  of  persons  who  are  to 
succeed  to  a  decedent's  personalty  as  his  distributees  or  next  of 
kin  will  be  determined  by  the  law  of  the  decedent's  domicil  at 
the  time  of  his  death.^ 

*  Sharpe  v.  Crispiu,  L.  R.  1  P.  &  D.  611 ;  Somerville  v.  Somerville,  5  Ves. 
750 ;  Ennis  v.  Smith,  14  How.  400,  424  ;  Wilkins  v.  EUett,  9  Wall.  740, 
742  ;  Sickles  v.  New  Orleans,  52  U.  S.  App.  147,  80  Fed.  868,  874  ;  Guier  v. 
O'Daniel,  1  Binn.  (Penn.)  349,  note  ;  Welles'  Estate,  161  Penn.  St.  218,  28 
Atl.  1116  ;  Shultz  V.  Pulver,  3  Pai.  Ch.  (N.  Y.)  182  ;  s.  c.  11  Wend.  361 ;  Vroom 
V.  Van  Home,  10  Pai.  Ch.  549,  42  Am.  Dec.  94 ;  Hegeman  v.  Fox,  31  Barb. 
(N.  Y. )  475  ;  Parsons  v.  Lyman,  20  N.  Y.  103  ;  Petersen  v.  Chemical  Bank, 

32  N.  Y,  21,  44,  88  Am.  Dec.  298  ;  Despard  v.  Churchill,  53  N.  Y.  192,  199; 
White  V.  Tennant,  31  W.  Va.  790,  8  S.  E.  596 ;  Mayo  v.  Equitable,  etc.  So- 
ciety, 71  Miss.  590,  15  So.  791 ;  Sneed  v.  Ewing,  5  J.  J.  Marsh.  (Ky.)  460,  22 
Am.  Dec.  41,  57  ;  Atchison  v.  Lindsey,  6  B.  Mon.  (Ky.)  86,  43  Am.  Dec. 
153,  156  ;  Shannon  v.  White,  109  Mass.  146  ;  Cooper  v.  Beers,  143  111.  25, 

33  N.  E.  61.  If  there  are  no  creditors  of  the  decedent,  either  local  or  domi- 
ciliary, it  is  usually  considered  unnecessary  to  remit  the  personalty  to  the 
owner's  domicil  for  distribution.  The  local  courts  may  distribute  it,  but  in 
accordance  with  the  provisions  of  the  lex  domicilii.  Welles'  Estate,  161 
Penn.  St.  218,  28  Atl.  1116;  Gravillon  v.  Richards,  13  La.  293,  33  Am.  Dec. 
563,  565  ;  Goodall  v.  Marshall,  11  N.  H.  88,  35  Am.  Dec.  472.  But  see  Suc- 
cession of  Petit,  49  La.  Ann.  625,  21  So.  717.  It  will  also  be  remembered 
that  the  succession  to  land  is  always  to  be  governed  by  the  lex  situs  of  the 
Und,     Ante,  §  12. 

1  Story,  Coufl.  L.  §  481  a  ;  Sharpe  v.  Crispin,  L.  R.  1  P.  &  D.  611 ;  Bruce 


§  140     WHO  DISTRIBUTEKS  —  CAPACITY  TO  SUCCEED.     329 

Thus,  in  Mayo  v.  Equitable,  etc.  Society,'  a  young  man, 
born  in  Virginia,  went  to  Tennessee  to  seek  employment,  where 
he  remained  for  a  year  ;  he  then  went  to  Mississippi,  where  he 
remained  about  a  year  ;  returned  to  Tennessee,  where  he  stayed 
a  month;  and  then,  on  account  of  constant  ill-health,  returned 
to  Virginia,  where  he  shortly  afterwards  died.  While  in  Mis- 
sissippi he  had  insured  his  life  in  the  Equitable  Assurance  So- 
ciety, and  on  his  return  to  Virginia  left  the  policy  in  Mississippi 
for  safe-keeping.  The  question  arose  in  Mississippi  as  to  the 
persons  entitled  to  the  proceeds  of  the  policy.  By  the  law  of 
Virginia,  where  the  court  held  the  decedent  to  have  been  domi- 
ciled at  his  death,  the  father  (who  was  heavily  indebted)  was 
the  sole  distributee.  By  the  law  of  Mississippi  other  members 
of  his  family  would  have  shared  in  the  distribution.  Notwith- 
standing the  hardship  of  the  case  (which  evoked  much  sympa- 
thy from  the  court)  it  found  itself  constrained  to  hold  that  the 
lex  domicilii  at  the  time  of  the  death  must  govern;  that  the 
youth's  estate  belonged  to  the  father  under  the  law  of  Virginia; 
and  that  the  impoverished  family  could  receive  only  what  was 
left  after  paying  the  father's  creditors. 

So  where  the  question  is  not  what  classes  of  the  kin  shall 
succeed  to  the  property,  but  whether  or  not  a  particular  member 
of  the  class  named  by  the  law  of  the  decedent's  domicil,  to  whom 
some  personal  disability  is  attached,  can  succeed  to  the  property 
along  with  other  members  of  the  same  class,  the  "proper  law"  to 
determine  his  capacity  of  succession,  it  is  believed,  is  the  law  of 
the  decedent's  domicil,  not  the  law  of  the  domicil  of  the  par- 
ticular distributee  whose  capacity  is  in  question.  In  Bruce  v. 
Bruce,'  the  inquiry  was  whether  the  decedent's  half-brother  was 
entitled  to  succeed  to  his  estate  along  with  a  whole  brother. 
The  case  was  held  to  turn  entirely  upon  the  domicil  of  the  de- 
cedent, no  mention  being  made  of  the  half-brother's  domicil. 
By  the  English  law,  the  half-brother  was  entitled  to  a  share; 

V.  Bruce,  2  Bos.  &  Pul.  229  ;  Ross  v.  Ross,  129  Mass.  243,  246,  37  Am.  Rep. 
321  ;  Mayo  v.  Equitable,  etc.  Society,  71  Miss.  590,  15  So.  791  ;  Welles'  E» 
tate,  161  Penn.  St.  218,  28  Atl.  1116 ;  Ennis  v.  Smith,  14  How.  400,  425. 

*  71  Miss.  590,  15  So.  791. 

»  2  Bos.  &  Pul.  229. 


830     WHO  DISTRIBUTEES  —  CAPACITY  TO  SUCCEED.     §  140 

by  the  law  of  Scotland,  he  was  not.  It  was  held  that  the 
decedent's  last  domicil  was  England,  and  that  its  law  must 
control. 

The  instance  in  which  this  point  has  most  frequently  arisen 
is  the  case  of  bastards  claiming  the  right  to  succeed  to  a  rela- 
tive's estate.  If  both  the  decedent  and  the  bastard  are  domiciled 
in  the  same  State  at  the  time  of  the  former's  death,  no  question 
will  arise  as  to  what  is  the  "proper  law."  The  two  domicils 
coincide,  and  the  lex  domicilii  will  govern.*  But  if  the  natural 
child  is  domiciled  in  a  State  different  from  the  deceased  rela- 
tive, and  by  the  law  of  one  State  the  capacity  to  succeed  with 
the  other  next  of  kin  is  given,  while  denied  by  the  law  of  the 
other  State,  the  solution  is  not  so  simple.  It  would  seem  to 
be  clear  that  if  the  lex  domicilii  of  the  decedent  should  forbid 
succession  by  the  bastard,  he  could  not  inherit,  because  the 
decedent's  property  is  legally  situated  at  the  domicil  of  the 
owner,  and  the  prohibitions  of  that  law  should  be  conclusive.' 
On  the  other  hand,  if  the  law  of  the  decedent's  domicil  permits 
the  bastard's  succession,  while  the  law  of  the  bastard's  domicil 
does  not,  a  moment's  reflection  will  show  that  the  policy  of  the 
latter  law  cannot  be  directed  towards  injuring  the  bastard,  but 
towards  protecting  the  estates  of  its  citizens  who  die  intestate 
from  such  doubtful  claims.  It  cannot  be  supposed  that  the  law 
of  the  bastard's  domicil  was  intended  to  prevent  one  of  its  own 
citizens  (even  though  he  be  a  bastard)  from  being  enriched  by 
sharing  in  the  estate  of  a  foreigner,  since  the  good  fortune  of 
the  bastard  can  in  no  way  impair  in  any  way  the  policy  of  his 
domicil.  In  other  words,  it  would  seem  manifest  that  the  in- 
capacity to  succeed  imposed  upon  the  bastard  by  the  law  of  his 
domicil,  was  only  an  incapacity  to  succeed  to  the  property  of 
residents  of  his  domicil.' 

But  in  these  cases  of  involuntary  transfer,  as  in  other  cases, 
there  may  be  occasions,  where  the  law  of  the  actual  situs  and 
forum  may  be  substituted  for  the  law  of  the  legal  situs  of  the 

♦  Doglioni  v.  Crispin,  L.  R.  1  H.  L.  301. 
6  Sharpe  v.  Crispin,  L.  R.  1  P.  &  D.  611. 

'  Quite  a  different  question  arises  where  the  bastard  has  been  legitimated, 
or  in  case  of  adopted  persons.     See  ante,  §  12. 


§  141  SHAKES   OF  DISTRIBUTEES.  331 

personalty  (lex  domicilii).  At  least  it  has  been  so  held  in  one 
late  Louisiana  case,  though  the  wisdom  of  the  decision  is,  to 
say  the  least,  doubtful.  In  Succession  of  Petit,''  a  father 
and  his  natural  son  were  both  domiciled  in  France,  by  whose 
law  the  bastard  was  entitled  to  succeed  to  a  share  of  the 
father's  estate.  The  father,  upon  his  death,  left  personalty  in 
Louisiana,  by  whose  law  the  bastard  was  not  entitled  to  inherit. 
Some  of  the  next  of  kin  were  residents  of  Louisiana,  and  in 
their  interests  the  Louisiana  court  declined  to  enforce  the  law 
of  France. 

§  141.  Shares  of  Distributees.  —  The  law  of  the  decedent's 
last  domicil  controls  also  the  shares  into  which  the  personal 
estate  is  to  be  divided,  and  the  proportion  that  shall  belong  to 
each  distributee.  So,  whether  primogeniture  gives  an  exclusive 
right  to  the  succession,  or  a  larger  proportion  thereof,  or  is  to 
be  entirely  disregarded  ;  whether  the  distributees  are  to  take 
per  capita  or  per  stirpes  ;  the  nature  and  extent  of  the  appli- 
cation of  the  principle  of  representation  ;  the  shares  of  a  hus- 
band, a  widow,  collaterals  of  the  half-blood,  etc.,  —  are  all  ques- 
tions properly  to  be  determined  by  the  law  of  the  decedent's 
last  domicil.^ 

For  example,  in  England  and  in  some  of  the  United  States, 
there  is  no  right  of  representation  beyond  that  of  brother's  and 
sister's  children  in  the  distribution  of  personalty.  Hence  if 
one  domiciled  in  England  should  die,  leaving  a  brother  and  the 
grandchildren  of  a  deceased  brother,  the  latter  would  not  take 
the  decedent's  personalty  in  virtue  of  their  representation  of 
the  deceased  brother,  even  though  the  personalty  were  actually 
situated  in  a  country'  by  whose  law  such  representation  was 
admissible.* 

■?  49  La.  Ann.  625,  21  So.  717. 

1  Story,  Confl.  L.  §  481  a ;  Bruce  v.  Brace,  2  Bos.  &  Pul.  229  ;  White  ». 
Tennant,  31  W.  Va.  790,  8  S.  E.  596  ;  Lawrence  v.  Kitteridge,  21  Conn.  577, 
56  Am.  Dec.  385  ;  Welles'  Estate,  161  Penn.  St.  218,  28  Atl.  1116  ;  DeCouche 
V.  Savetier,  3  Johns.  Ch.  (N.  Y.)  190,  8  Am.  Dec.  478,  480;  Hegeman  v. 
Pox,  31  Barb.  (N.  Y.)  475  ;  Hairston  v.  Hairston,  27  Miss.  704,  61  Am.  Dec. 
630  ;  Williamson  v.  Smart,  Conference  Rep.  (N.  C.)  146,  2  Am.  Dec.  638  j 
Ennis  r.  Smith,  14  How.  400,  425. 

«  Story,  Confl.  L.  §  481  o. 


332  TRANSFER   BY   WILL,   INVOLUNTARY.  §  142 


CHAPTER  XIV. 

TRANSFERS  OF  PERSONALTY  BY  WILL. 

§  142.  Transfer  by  "Will,  Involuntary.  —  From  the  stand* 
point  of  private  international  law,  a  will  is  to  be  viewed  in 
the  light  of  an  involuntary,  rather  than  a  voluntary,  transfer 
of  property,  and  therefore  the  "  proper  law "  is  the  law  of  the 
legal,  not  the  actual,  situs  of  the  testator.  Though  the  act  of 
executing  a  will  is  a  voluntary  act,  that  act  ex  propria  vigore 
has  no  effect  in  transferring  the  title.  Effect  is  given  to  it 
only  by  and  upon  the  subsequent  death  of  the  owner,  without 
revocation  of  the  will.  The  real  act  which  gives  the  will  effect 
as  a  transfer  is  the  testator's  death,  and  that  is  involuntary. 
The  fact  that  he  is  in  a  particular  country  when  death  over- 
takes him  is  no  indication  that  he  has  voluntarily  submitted 
himself  or  his  property  to  its  laws.  So  the  fact  that  he  is 
in  a  particular  State  when  he  executes  the  will  is  no  necessary 
indication  that  he  submits  himself  or  his  property  to  the  laws 
of  that  State,  for  he  knows  that  the  will  is  not  to  take  effect 
until  his  death,  at  which  time  he  may  have  severed  all  connec- 
tion with  that  State. 

In  its  influence  upon  the  operation  of  the  will  as  a  transfer 
of  property,  the  death  of  the  testator  preponderates  over  the 
making  of  the  will  to  the  extent  that  it  is  in  general  the  con- 
dition of  affairs  at  the  time  of  the  death,  not  that  at  the  time 
of  the  making  of  the  will,  which  furnishes  the  law  of  the  case ; 
for  wills  of  personalty  speak  as  at  the  testator's  death.  But  it 
is  not  necessarily  the  State  where  the  death  occurs  that  fur- 
nishes the  law.  Since  the  death  is  involuntary,  there  is  no 
reason  to  presume  the  owner's  personalty  to  be  legally  situate 
elsewhere  than  at  the  legal  situs  (domicil)  of  the  owner.  The 
law  of  his  actual  situs  at  the  time  of  death,  as  such,  will  not 


§  143  FORMAL  VALIDITY  OF  WILL.  333 

control,  nor  (except  for  purposes  of  administration)  will  the  la\» 
of  the  actual  situs  of  the  property  have  any  influence. 

But  it  does  not  necessarily  follow  that  the  strict  letter  of  the 
lex  domicilii  is  always  to  be  enforced  in  regard  to  wills.  It  is 
indeed,  as  in  other  cases,  the  policy  of  the  domicil  rather  than 
its  law  which  is  to  control.  The  law  may  be  couched  in  such 
general  terms  as  to  cover  cases  it  was  manifestly  not  intended 
to  cover,  cases  not  at  all  within  the  scope  of  its  policy.  In 
such  cases  the  strict  letter  of  the  domiciliary  law  is  not  appli- 
cable, and  it  may  be  supposed  that  that  law  intends  that  its 
provisions  may  then  be  substituted  by  the  law  of  some  other 
State  more  interested  in  the  matter. 

Instances  of  this  have  already  been  seen  in  our  examination 
of  the  proper  law  governing  testamentary  capacity,^  and  other 
instances  will  be  seen  in  the  course  of  the  following  discussion. 

But  this  applies  only  to  wills  of  personalty.  With  respect 
to  lands,  it  is  perfectly  well  settled  that  the  strict  letter  of  the 
lex  situs  of  the  land  will  control  the  validity  of  the  devise  in 
all  respects.^ 

It  is  to  be  observed  that,  although  the  will  consists  of  dis- 
positions of  both  real  and  personal  estate,  situated  in  different 
States,  and  even  though  they  are  given  in  the  same  clause  of 
the  will  and  upon  the  same  trusts,  the  dispositions  will  in  gen- 
eral be  severable,  and  the  validity  of  one  will  not  usually  de 
pend  upon  the  validity  of  the  other.  One  may  be  valid  by  the 
lex  situs,  while  the  other  is  invalid  by  the  lex  domicilii,  and 
vice  versa.* 

§  143.  Formal  Validity  of  Wills  of  Personalty.  — The  pol- 
icy of  laws  controlling  the  formal  validity  of  wills  is  directed 

1  Ante,  §  70. 

2  Carpenter  v.  Bell,  96  Tenn.  294,  34  S.  W.  209 ;  Williams  v.  Saunders, 
6  Coldw.  (Tenn.)  60,  72;  Frazier  v.  Boggs,  37  Fla.  307,  20  So.  245  ;  Wynne 
V.  Wynne,  23  Miss.  251,  57  Am.  Dec.  139  ;  Ross  v.  Ross,  129  Mass.  243,  245, 
37  Am.  Rep.  321  ;  Ford  v.  Ford,  70  Wis.  19,  33  N.  W.  188  ;  Penfield  v 
Tower,  1  N.  D.  216,  46  N.  W.  413 ;  Darby  v.  Mayer,  10  Wheat.  465  ;  Ken 
V.  Moon,  9  Wheat.  565  ;  Ware  v.  Wisner,  50  Fed.  310.  It  is  otherwise  as  to 
the  interpretation  of  the  devise.     Post,  §  145. 

8  Knox  V.  Jones,  47  N.  Y.  389,  395.  See  Cross  v.  Trust  Co.,  131  N.  Y. 
830,  339. 


834  FORMAL   VALIDITY   OP   WILL.  §  143 

towards  all  wills  which  owe  their  effect  to  those  laws,  and  em- 
braces therefore  all  wills  of  personalty  executed  by  persons  do7n- 
iciled  in  that  State,  without  regard  to  the  actual  locality  of  the 
property  disposed  of  or  the  place  where  the  will  may  happen  to 
have  been  actually  executed.  For  this  purpose  the  strict  letter 
of  the  lex  domicilii  of  the  testator  at  the  time  of  his  death  will 
control,  and  no  foreign  law  can  be  incorporated  into  it  for  the 
purpose  of  any  particular  case.  ^ 

The  result  is  the  same  if  the  testator  makes  his  will  in  his 
domicil  according  to  the  forms  and  ceremonies  prescribed  by 
its  laws,  and  subsequently  removes  to  another  State  to  live,  by 
the  law  of  which  the  ceremonies  accompanying  the  execution  of 
the  will  are  not  sufficient.  And  so,  if  we  suppose  the  will  in- 
valid in  the  first  State  and  valid  in  the  second.  It  is  in  all 
cases  the  law  of  the  testator's  domicil  at  the  date  of  his  death, 
not  at  the  time  of  the  execution  of  the  will,  that  must  deter' 
mine  its  formal  validity.  This  is  true,  not  only  because  the 
will  speaks  as  at  the  death  of  the  testator,  being  revocable  and 
ambulatory  up  to  that  time,  but  also  because  the  matter  of 
testacy  or  intestacy  is  a  status  fixed  by  his  death,  and  as  such 
is  to  be  determined  by  the  lex  domicilii  at  that  time.'^ 

Thus,  in  Moultrie  v.  Hunt,'  the  testator  domiciled  in  South 

1  Desesbats  v.  Berquier,  1  Binn.  (Penn.)  349,  2  Am.  Dec.  448  ;  Flannery's 
Will,  24  Penn.  St.  502;  Williams  v.  Saunders,  5  Coldw.  (Tenn.)  60,  69; 
McCune  v.  House,  8  Ohio,  144,  31  Am,  Dec.  438  ;  Burlington  University  v. 
Barrett,  22  la.  60,  92  Am.  Dec.  376 ;  Moultrie  v.  Hunt,  23  N.  Y.  394  ; 
Chamberlain  v.  Chamberlain,  43  N.  Y.  424,  432  ;  Kerr  v.  Dougherty,  79  N.  Y. 
327,  342  ;  Hope  v.  Brewer,  136  N.  Y.  126,  138  ;  Ford  v.  Ford,  70  Wis.  19, 
33  N.  W.  188  ;  Cameron  v.  Watson,   40  Miss.  191,  207  ;  Sickles  v.  New  Or- 

eans,  52  U.  S.  App.  147,  80  Fed.  868 ;  Yates  v.  Thompson,  3  CI.  &  F.  544, 
577.  In  a  few  cases,  expressions  will  be  found  to  the  effect  that  a  will  of  per- 
sonalty, if  formally  valid  according  to  the  law  of  the  place  where  it  is  exe- 
cuted, will  be  sustained  everywhere.  See  Roberts'  Will,  8  Pai.  Ch.  (N.  Y.) 
519  ;  Sevier  v,  Douglass,  44  La.  Ann.  605,  10  So.  804.  But  an  examination 
of  these  cases  will  show  that  the  court  was  regarding  the  will  as  made  at  the 
testator's  domicil. 

2  Moultrie  v.  Hunt,  23  N.  Y.  394  ;  Dupuy  v.  Wurtz,  53  N.  Y.  556  ;  White 
V.  Howard,  46  N.  Y.  144  ;  McCune  v.  House,  8  Ohio,  144,  31  Am.  Dec.  438  , 
Nat  V.  Coons,  10  Mo.  543. 

•  SSH.  Y,3»4. 


§  144  SUBSTANTIAL  VALIDITY   OF   WILL.  335 

Carolina  there  executed  his  will,  declaring  before  the  attesting 
witnesses  that  it  was  his  signature  and  seal.  This  was  sufficient 
in  South  Carolina  to  make  it  a  valid  will.  The  testator  subse- 
quently removed  to  New  York,  where  he  died.  By  the  law  of 
New  York,  it  was  required  that  the  testator  should  declare  in 
the  presence  of  two  attesting  witnesses  that  it  was  his  last  will 
and  testament.  It  was  held  that  the  formal  validity  of  the  will 
was  to  be  determined  by  the  law  of  the  testator's  domicil  at 
the  time  of  his  death,  not  at  the  date  of  the  execution  of  the 
will. 

§  144.  Substantial  Validity  of  the  Provisions  of  the  Will. 
—  In  determining  the  substantial  validity  of  a  will  of  person- 
alty, the  general  principle  is  unquestionably  the  same  as  in  the 
case  of  its  formal  validity.  The  law  of  the  testator's  last  dom- 
icil is  the  proper  law.  But  elements  are  present  here  which  are 
absent  where  the  investigation  relates  to  matters  of  form  only, 
and  which  give  rise  to  apparent  exceptions  to  the  operation  of 
the  lex  domicilii.  But  these  exceptions  are  apparent  only, 
since  in  reality  it  is  the  temporary  adoption  by  the  lex  domicilii 
of  another  law  in  the  particular  case,  which  gives  such  other 
law  its  effect.  It  has  none  inherently.  The  general  rule  is 
still  that  the  law  of  the  testator's  domicil  at  the  time  of  his 
death  will  regulate  the  validity  of  the  testamentary  provisions.^ 

But  difficulty  is  often  experienced  in  these  cases  in  ascertain- 
ing what  is  the  law  of  the  domicil  in  regard  to  a  particular  set 
of  circumstances.  In  order  to  determine  this,  the  policy  of  the 
particular  statute  or  law  of  the  domicil  must  be  looked  to. 
Such  laws  may  be  divided  into  four  distinct  classes. 

One  class  of  these  provisions  may  be  created  for  purposes  of 
convenience  and  certainty  in  the  administration  of  estates, 
such,  for  example,  as  that  vague  and  indefinite  trusts  contained 
in  a  will  are  void.  The  main  purpose  of  such  provisions  is  to 
relieve  the  courts  of  the  domicil  of  the  difficult  task  of  enforcing 

*  Williams  v.  Saunders,  5  Coldw.  (Tenn. )  60,  76  ;  Chamberlain  v.  Cham- 
berlain, 43  N.  Y.  424  ;  Cross  v.  Trust  Co.,  131  N.  Y.  330  ;  Dammert  v.  Os- 
bom,  140  N.  Y.  30  ;  Fellows  v.  Miner,  119  Mass.  541  ;  Bible  Society  v, 
Pendleton,  7  W.  Va.  79  ;  Ford  v.  Ford,  70  Wis.  19,  33  N.  W.  188  ;  Penfield 
V.  Tower,  1  N.  D.  216,  46  N.  W.  413. 


336  SUBSTANTIAL  VALIDITY  OP   WILL.  §  144 

the  testator's  wishes  when  vaguely  expressed.  It  is  ohvious  that 
if  the  will  provides  that  these  vague  dispositions  are  to  be  en- 
forced in  the  courts  of  some  other  State  than  the  domicil,  and 
the  courts  of  that  State  are  authorized  by  its  law  to  enforce 
such  dispositions,  the  strict  letter  of  the  domiciliary  law  is  not 
applicable. 

Another  class  relates  to  the  management  and  control  of  the 
pr*>perty  bequeathed,  such,  for  example,  as  prohibitions  against 
perpetuities  or  accumulations,  etc.  Here  also,  if  the  provisions 
of  the  will  are  such  that  these  perpetuities  or  accumulations 
relate  only  to  property  outside  the  domicil,  the  strict  letter  of 
the  lex  domicilii  is  not  applicable.  The  purpose  of  such  laws 
is  to  prevent  property  actually  situated  in  the  State  from  being 
tied  up  and  not  subject  to  alienation.  If  therefore  the  will 
thus  disposes  of  property  in  another  State  than  the  domicil,  the 
intention  being  that  it  should  remain  there,  the  domiciliary 
provisions  against  perpetuities,  etc.,  are  not  intended  to  embrace 
such  a  case.  That  is  a  question  to  be  dealt  with  by  the  law  of 
the  place  which  is  the  proposed  situs  of  the  property. 

A  third  class  embraces  those  cases  wherein  the  policy  of  the 
domicil  is  directed  against  the  holding  by  certain  classes  of 
persons  of  property  under  a  will,  such  as  corporations  under 
the  statutes  of  mortmain.  Here  again,  if  the  legatees  live  else- 
where the  policy  of  the  domicil  does  not  apply. 

The  last  class  embraces  those  cases  wherein  the  domiciliary 
policy  is  directed  towards  the  protection  of  the  testator  or  his 
family  from  improvident  dispositions,  such  as  limitations  upon 
the  testator's  capacity  to  bequeath  his  property  to  charitable 
purposes,  except  to  a  limited  amount,  or  unless  the  will  be 
executed  a  certain  period  before  his  death;  restrictions  upon 
the  capacity  of  an  infant,  or  a  married  woman,  to  make  a 
will,  etc.  The  policy  of  this  class  of  laws  is  to  protect  the 
citizens  of  the  State  where  they  are  enacted.  They  are  directed 
towards  those  testators  who  are  resident  there,  and  constitute 
restrictions  upon  testamentary  capacity.  Their  application  is 
entirely  independent  of  the  locality  of  the  property  transferred. 
Here  the  lex  domicilii  governs  in  full  force,  without  the  aid  of 
any  foreign  law  whatever. 


§  144  SUBSTANTIAL   VALIDITY   OF   WILL.  387 

This  fourth  class  of  laws  controlling  testamentary  validity, 
involving  the  capacity  to  make  a  will  of  personalty,  and  the 
third  class,  involving  the  capacity  of  the  legatee  to  take,  have 
been  already  discussed  in  connection  with  the  law  governing 
personal  capacities.'' 

With  regard  to  the  first  two  classes,  though  the  older  rule  was 
that  the  letter  of  the  lex  domicilii  should  govern  in  all  cases, 
even  though  the  property  disposed  of  was,  under  the  will,  to  be 
enjoyed  in  another  State,*  the  modern  tendency  is  distinctly  in 
the  direction  of  enforcing  the  policy  rather  than  the  letter  of  the 
lex  domicilii,  and  if  the  property  is  to  have  its  final  situs  in 
another  State,  to  make  the  law  of  that  State  a  part  of  the  lex 
domicilii  for  the  purpose  of  regulating  that  disposition.* 

In  Hope  V.  Brewer,^  a  testator  domiciled  in  New  York  be- 
queathed property  to  trustees  in  Scotland,  to  establish  a  charity 
in  that  country.  The  bequest  under  the  law  of  New  York  was 
too  vague  and  indefinite,  but  was  valid  and  capable  of  enforce- 
ment under  the  laws  of  Scotland.  The  New  York  court  decided 
in  favor  of  the  validity  of  the  bequest. 

2  Ante,  §  70. 

»  Wood  V.  Wood,  5  Pai.  Ch.  (N.  Y.)  596,  28  Am.  Dec.  451  ;  Sorrey  v. 
Bright,  1  Dev.  &  B.  Eq.  (N.  C.)  113,  28  Am.  Dec.  584 ;  Montgomery  v.  Mil- 
liken,  5  Sm.  &  M.  (Miss.)  151,  43  Am.  Dec.  507  ;  Lowry  v.  Bradley,  1  Speer's 
Eq.  (S.  C),  1,  39  Am.  Dec.  142. 

*  Chamberlain  v.  Chamberlain,  43  N.  Y.  424  ;  Hope  v.  Brewer,  136  N.  Y. 
126 ;  Fellows  v.  Miner,  119  Mass.  541 ;  Healy  v.  Reed,  153  Mass.  197  ;  Sohier 
V.  Burr,  127  Mass.  221 ;  Ford  v.  Ford,  80  Mich.  42,  44  N.  W.  1057.  But 
see  Cross  v.  Trust  Co.,  131  N.  Y.  330  ;  Doty  v.  Hendrix,  16  N.  Y.  Supp.  284  ; 
Dammert  v.  Osborn,  140  N.  Y.  30  ;  Bible  Society  i».  Pendleton,  7  W.  Va.  79. 
In  Dammert  v.  Osborn,  supra,  a  testator  domiciled  in  Peru  bequeathed  per- 
sonalty to  charitable  uses  in  New  York,  invalid  under  the  laws  of  New  York, 
prohibiting  the  suspension  of  the  power  of  alienation  for  a  longer  period  than 
two  lives  in  being  at  the  death  of  the  testator,  but  valid  under  the  law  of  Peru 
(lex  domicilii).  This  bequest  was  sustained  in  New  York,  after  a  special 
enactment  by  the  New  York  legislatiu-e  validating  the  charity.  In  the  ab- 
sence of  this  special  enactment,  it  would  seem  that  the  general  laws  of  New 
York  would  have  governed ;  unless  perhaps  the  policy  of  those  laws  should  be 
deemed  so  unimportant  as  to  be  superseded  by  the  advantages  accruing  from 
a  valuable  charity  donated  by  foreigners.  But  the  courts  could  hardly  con- 
sider such  matters  in  reaching  a  decision. 

6  136  N.  Y.  126,  134,  135.     See  Bible  Society  v.  Pendleton,  7  W.  Va.  7a 

22 


388  INTERPRETATION   OF   WILL.  §  145 

In  Chamberlain  v.  Chamberlain,*  a  N^ew  York  testator  be- 
queathed a  legacy  to  a  Pennsylvania  corporation  for  charitable 
purposes,  which  was  violative  of  the  New  York  statutes  against 
perpetuities.  It  was  held  by  the  New  York  court  that  the  valid- 
ity of  the  bequest  in  that  respect  should  depend  upon  the  law  of 
Pennsylvania,  whither  the  property  was  to  be  sent  for  use.  In 
the  course  of  its  opinion  the  court  says:  "It  is  no  part  of  the 
policy  of  New  York  to  interdict  perpetuities  or  gifts  in  mort- 
main in  Pennsylvania.  Each  State  determines  those  matters 
according  to  its  own  views  of  policy  and  right,  and  no  other 
State  has  any  interest  in  the  question.  There  is  no  reason  why 
the  New  York  courts  should  follow  the  funds  bequeathed  to  this 
Pennsylvania  corporation  to  see  whether  they  will  be  there  ad- 
ministered in  all  respects  in  strict  harmony  with  our  policy  and 
laws." 

In  Despard  v.  Churchill,^  it  was  held  that  the  New  York 
courts  would  not  themselves  directly  enforce  the  provisions  of  a 
Californian's  will,  valid  in  California,  disposing  of  personalty 
in  New  York,  the  will  creating  perpetuities  invalid  under  New 
York  law,  but  that  the  New  York  assets,  after  paying  certain 
legacies  which  were  valid  under  the  law  of  New  York,  should  be 
remitted  to  California  to  be  there  distributed.  If  it  had  been 
directed  by  the  will  that  this  property  was  to  go  to  New  York 
legatees  and  to  remain  there,  doubtless  the  court  would  have  de- 
clared the  disposition  invalid,  as  not  being  within  the  purview 
of  the  California  law,  but  embraced  in  the  policy  of  the  State  of 
New  York.  As  it  was,  however,  the  property  was  to  go  out  of 
New  York,  and  therefore  it  would  seem,  the  New  York  policy 
not  being  applicable  to  the  case,  there  was  no  particular  reason 
why  the  court  should  have  refused  to  itself  enforce  the  provisions 
of  the  will. 

§  145.  Interpretation  of  the  Will.  —  In  the  case  of  any  docu- 
ment, whether  it  be  a  contract,  a  conveyance,  or  a  will,  the  pri- 
mary rule  for  the  interpretation  of  ambiguous  language  is  that  the 

^  43  N.  Y.  424.  It  seems  impossible  to  reconcile  with  this  the  case  of 
Cross  V.  Trust  Co.,  131  N.  Y.  330.  But  the  former  would  seem  to  lay  down 
the  correct  rule. 

»  53  N.  Y.  192. 


§  145  INTERPRETATION   OF   WILL.  339 

intention  of  the  person  using  the  language  must  be  ascertained 
and  followed.  The  question  is,  what  does  the  party  mean  by 
the  phrases  or  words  he  has  used  ?  This  will  often  be  ascer- 
tained by  merely  considering  the  context  of  the  document  itself, 
but  sometimes  the  words  are  such  as  may  be  given  a  technical 
or  customary  meaning  in  one  State  different  from  that  attached 
to  the  same  words  by  the  law  or  custom  of  another  State.  Thus, 
the  technical  legal  words  "heirs"  or  "next  of  kin,"  or  the 
words  of  the  vernacular,  such  as  ''dollars,"  ** pounds,"  etc.,  are 
instances  of  phrases  which  may  have  different  meanings  in  dif- 
ferent countries.  So  the  mere  silence  of  the  testator  upon  cer- 
tain points  may  create  different  interpretations  of  his  intention 
in  different  States,  as  where  the  testator  makes  a  provision  for 
his  wife,  without  stating  whether  it  is  intended  in  lieu  of  her 
dower,  or  where  he  makes  no  provision  in  his  will  for  the  case 
of  the  legatee  dying  before  himself,  etc. 

In  such  cases  the  question  will  arise,  which  meaning  did  the 
grantor  or  testator  intend  should  be  attached  to  his  words  or  to 
his  silence  ?  The  answer  cannot  always  be  given  with  absolute 
assurance  of  truth,  and  in  the  absence  of  direct  evidence  resort 
must  be  had  here,  as  in  other  cases,  to  presumptions  of  law.  The 
general  proposition  may  be  laid  down  that  the  interpretation  of 
such  ambiguous  phrases  should  be  determined  in  accordance  with 
the  laws  and  customs  of  that  State  most  probably  in  the  mind 
of  the  grantor  or  testator  when  he  used  the  words,  and  with 
which  he  is  to  be  presumed  to  be  most  familiar. 

If  the  country  whose  phrases  he  adopts  is  expressly  desig- 
nated by  the  testator,  or  is  given  by  implication  from  the 
language  of  the  will,  there  would  then  be  no  doubt  as  to  his  in- 
tention to  give  his  words  the  same  meaning  attached  to  them 
in  that  country.* 

Thus,  if  one  domiciled  in  New  York  directs  that  his  estate 

1  Dicey,  Confl.  L.  696;  Enohin  r.  Wylie,  10  H.  L.  Gas.  1  ;  s.  c.  1  DeG.  F. 
&  J.  470  ;  Anstruther  v.  Chalmer,  2  Sim.  1  ;  Yates  v.  Thompson,  3  CI.  &  F. 
544,  588  ;  Harrison  r.  Nixon,  9  Pet.  483,  504 ;  Ford  v.  Ford,  80  Mich.  42,  44 
N.  W.  1057,  1059,  1060;  Ford  v.  Ford,  70  Wis.  19,  33  N.  W.  188,  196  ;  s.  c. 
72  "Wis.  621,  40  N.  W.  502 ;  Lincoln  v.  Perry,  149  Mass.  368  ;  Merrill  v. 
Preston,  135  Mass.  451  ;  Codman  v.  Krell.  152  Mass.  214. 


340  INTERPRETATION    OF   WILL.  §  145 

shall  be  distributed  among  those  persons  who  would  answer  the 
description  of  his  "next  of  kin"  or  ''heirs  at  law"  under  the 
laws  of  France,  the  New  York  courts  or  the  courts  of  any  other 
State  would  find  no  difficulty  in  applying  the  French  law  to 
the  case,  and  in  selecting  the  beneficiaries  in  accordance  with 
that  law.  Their  obvious  duty  would  be  to  follow  the  intention 
expressed  by  the  testator. 

Again,  though  the  country  whose  law  or  usage  the  testator 
has  in  mind  when  he  uses  the  ambiguous  phrases  be  not  ex- 
pressly designated  in  the  will,  yet  where,  on  the  face  of  the 
instrument,  it  is  apparent  that  the  testator  has  a  particular 
country  in  mind,  the  law  and  usage  of  that  country,  wherever 
it  be,  will  control  the  interpretation  of  the  ambiguous  phrase. 
Thus,  a  testator  domiciled  in  England  executes  a  will  in 
France,  in  the  French  language,  expressed  in  all  the  technical 
terms  of  French  law.  Such  a  will  would  generally  be  inter- 
preted, in  respect  to  ambiguous  phrases,  etc.,  in  accordance 
with  French  law  or  custom,   rather  than  English.^ 

But  as  a  general  rule  nothing  will  appear  to  indicate  the 
country  whose  laws  and  usages  the  testator  had  in  mind.  In 
such  event,  if  the  ambiguity  occurs  with  respect  to  the  disposi- 
tion of  personalty  by  will,  the  presumption  of  law,  in  the  ab- 
sence of  contrary  evidence,  is  that  the  testator  had  in  view  the 
laws  and  usages  of  his  domicil,  as  being  those  with  which  he  is 
supposed  to  be  most  familiar.  The  actual  situs  of  the  property 
disposed  of,  or  the  domicil  of  the  legatees,  will  generally  be 
immaterial.' 

*  Dicey,  Confl.  L.  696  ;  Chamberlain  v.  Napier,  15  Ch.  D.  614 ;  Enohin  v. 
Wylie,  10  H.  L.  Cas.  1  ;  s.  c.  1  DeG.  F.  &  J.  470.  But  see  Anstmther  v. 
Chalmer,  2  Sim.  1  ;  Caulfield  v.  SuUivran,  85  N.  Y.  153. 

*  Maxwell  v.  Maxwell,  3  DeG.  M.  &  G.  705 ;  Harrison  v.  Nixon,  9  Pet. 
483,  504;  Sickles  v.  New  Orleans,  52  U.  S.  App.  147,  80  Fed.  868,  873  ;  Oil- 
man V.  Gilman,  52  Me.  165,  83  Am.  Dec.  502  ;  Parsons  r.  Lyman,  20  N.  Y. 
103  ;  Caulfield  v.  Sullivan,  85  N.  Y.  153  ;  Dammert  v.  Osbom,  140  N.  Y.  30, 
45  ;  Bowditch  v.  Saltyk,  99  Mass.  136  ;  Sewall  r.  Wilmer,  132  Mass.  131, 
136 ;  Merrill  v.  Preston,  135  Mass.  451  ;  Lincoln  v.  Perry,  149  Mass.  368  ; 
Welch  V.  Adams,  152  Mass.  74  ;  Codman  v.  Erell,  152  Mass.  314  ;  Adams  v. 
Adams,  154  Mass.  290  ;  Mullen  v.  Reed,  64  Conn.  240,  29  AtL  478  ;  Rockwell 
9.  Bradshaw,  67  Conn.  9,  34  Atl.  758,  759  ;  Fordr.  Ford,  70  Wis.  19,  33  N.  W, 
188,  195  ;  Knights  Templars  Association  v.  Greene,  79  Fed.  461,  465. 


§146  INTERPRETATION  OF   WILL.  341 

If  the  property  disposed  of  be  land  situated  in  a  State  othei 
than  the  testator's  domicil,  some  question  has  been  made  whether 
the  interpretation  of  the  testator's  language  should  be  controlled 
by  the  law  and  usage  of  the  domicil  or  of  the  situs  of  the  prop- 
erty. A  few  cases  may  be  found  holding  that  the  interpretation 
of  the  devise  must  depend  upon  the  lex  situs.*  But  here  too  the 
weight  of  reason  and  authority  is  in  favor  of  the  rule  that  the 
interpretation  of  a  devise  is  to  be  governed  by  the  law  or  usage 
with  which  the  testator  is  supposed  to  be  most  familiar,  namely, 
that  of  his  domicil ;  and  hence  when  he  uses  words  he  must  be 
presumed  to  have  intended  that  they  should  be  used  in  the  sense 
given  them  in  his  domicil,  unless  the  contrary  appears.*  So, 
also,  if  it  becomes  necessary  to  fill  in  some  hiatus  in  the  ex- 
pressed intention  of  the  testator,  resulting  from  his  failure  to 
provide  for  all  contingencies,  as  in  the  case  of  a  lapse,  or  the 
obligation  of  a  devisee  to  elect  whether  or  not  to  take  under  the 
wilL« 

§  146.  Same  —  Beneficiaries  —  Property  Disposed  of.  —  If 
a  will  gives  property,  real  or  personal,  to  a  devisee  or  legatee, 
not  by  name  but  describing  him  as  one  of  a  class,  such  as 
"heirs  at  law,"  ''next  of  kin,"  "  children,"  etc.,  these  or  the 

*  Yates  V.  Thompson,  3  01.  &  F.  544,  588  ;  Jennings  v.  Jennings,  21  Ohio 
St.  56 ;  Applegate  v.  Smith,  31  Mo.  166  ;  Richardson  v.  DeGiverville,  107  Mo. 
422,  17  S.  W.  974,  977  ;  McCartney  v.  Osborn,  118  111.  403,  9  N.  E.  210 ; 
Wynne  v.  "Wynne,  23  Miss.  251,  57  Am.  Dec.  139.  It  is  evident  that  this 
rule  could  not  be  applied  if  the  testator  possessed  lands  in  several  States,  with 
different  interpretations  of  the  words  used,  should  the  testator  dispose  of  them 
all  by  the  same  language  ;  for  it  could  not  be  supposed  that  the  testator 
would  intend  the  same  clause  to  have  dififerent  meanings  with  respect  to  dif- 
ferent tracts  of  land.  See  Crusoe  v.  Butler,  36  Miss.  150  ;  Wilson  v.  Cox,  49 
Miss.  538,  545.  This  reductio  ad  absurdum  would  seem  to  suffice  to  throw 
discredit  upon  a  rule  which  might  produce  such  results. 

5  Ford  V.  Ford,  80  Mich.  42,  44  N.  W.  1057,  1059  ;  Ford  v.  Ford,  70  Wis. 
19,  33  N.  W.  188,  195  ;  s.  c.  72  Wis.  621,  40  N.  W.  502  ;  Proctor  v.  Clark, 
154  Mass.  45,  27  N.  E.  673  ;  Lincoln  v.  Perry,  149  Mass.  368. 

6  Trotter  v.  Trotter,  4  Bligh,  N.  s.  502  ;  s.  c.  3  Wils.  &  Sh.  407 ;  Maxwell 
V.  Maxwell,  2  DeG.  M.  &  G.  705  ;  Maxwell  v.  Hyslop,  L.  R.  4  Eq.  407  ;  Caul- 
field  V.  Sullivan,  85  jST.  Y.  153 ;  Staigg  v.  Atkinson,  144  Mass.  564,  12  N.  E. 
354  ;  Washburn  v.  Van  Steenwyk,  32  Minn.  336, 20  N.  W.  324 ;  Van  Steenwyk 
V.  Washburn,  59  Wis.  483,  17  N.  W.  289. 


342  INTERPRETATION  OP   WILL.  §  146 

like  terms,  in  the  absence  of  evidence  of  a  contrary  intention, 
are  to  be  construed  according  to  the  meaning  given  such  terms 
in  the  testator's  domicil,  as  shown  in  the  preceding  section.^ 

So  where  such  terms  as  "estate,"  **real  estate,"  "movable 
property,"  "dollars,"  ''pounds,"  etc.,  are  used  in  a  will,  they 
are  to  be  construed  in  accordance  with  the  same  law.  Thus,  in 
Enohin  v.  Wylie,*  an  Englishman,  domiciled  in  Russia,  and 
possessed  of  large  real  and  personal  estate,  including  a  consider- 
able amount  in  the  English  funds,  made  a  will  in  the  Russian 
language  and  form,  disposing  of  all  his  "movable  and  immov- 
able property,"  but  without  any  other  language  excluding  or 
including  his  English  property.  In  England,  the  phrase  "  mov- 
able property  "  was  usually  applied  to  tangible  chattels,  while 
in  Russia  it  was  the  designation  by  which  all  personal  property, 
whether  tangible  or  intangible,  was  known.  The  question  was 
whether  the  will  passed  the  money  in  the  English  funds.  The 
court  held  that  the  meaning  given  to  the  words  in  Russia,  the 
testator's  domicil,  should  prevail. 

So  also  the  law  of  the  testator's  domicil  will  determine  the 
meaning  of  ambiguous  words  used  by  him  to  describe  the  estate 
or  interest  intended  to  be  vested  in  the  legatee  or  devisee.  In 
Brown  v.  Brown,"  an  English  case,  a  testator  domiciled  in  Vir- 
ginia, devised  to  his  sister,  Mary  Brown,  "the  remaining  one- 
fourth  share  of  the  balance  of  my  estate,  at  her  death  to  be 
equally  divided  among  her  children."  The  question  was  whether 
Mary  Brown  took  a  life  estate  or  a  fee-simple.  It  appearing 
that  the  Virginia  courts  had  construed  the  will  to  give  her  an 
absolute  estate,  the  House  of  Lords  followed  that  construction. 

So  whether  a  party  takes  an  estate  by  implication  of  law  un- 
der a  will ;  or  whether  a  precatory  trust  is  raised  by  expressions 
of  hope  or  confidence,  etc.,  are  questions  of  construction  to  be 
determined  by  the  law  of  the  testator's  domicil.* 

1  Merrill  v.  Preston,  135  Mass.  451  ;  Proctor  v.  Clark,  154  Mass.  45,  27 
N.  E.  673  ;  Lincoln  v.  Peny,  149  Mass.  368 ;  Harrison  v.  Nixon,  9  Pet.  488^ 
504 ;  Stoi7,  Confl.  L.  §§  479  e,  479  h. 

2  10  H.  L.  Cas.  1 ;  s.  c.  1  DeG.  F.  &  J.  470. 
«  4  Wils.  &  Sh.  28. 

*  Story,  Confl.  L.  §§  479  b,  479  c. 


§147    INTEEPRETATIONOFWILL  — LAPSE  — ELECTION.    343 

An  important  corollary  of  the  rule  that  the  law  of  the  tes- 
tator's domicil  governs  the  interpretation  of  his  will  should  be 
noted.  The  interpretation  imposed  by  the  lex  domicilii  will 
carry  with  it  in  the  forum  all  the  incidents  which  would  have 
followed  if  the  same  construction  would  have  been  placed  upon 
the  will  by  the  lex  fori  itself.*  Thus,  in  Trotter  v.  Trotter," 
an  English  case,  a  Scotchman,  domiciled  in  India  (by  construc- 
tion of  English  law,  in  England),  made  his  will  in  India,  being 
possessed  of  Scotch  heritable  bonds,''  as  well  as  of  personal  prop- 
erty in  Scotland.  The  Scotch  law  required  an  heir  claiming 
also  personal  property  under  the  will,  either  to  throw  his  heri- 
tage into  the  common  fund  and  take  his  legacy,  or  to  elect  be- 
tween the  two  (in  accordance  with  the  presumed  intention  of 
the  testator).  The  will  in  this  case  was  ineffectual  to  carry  the 
Scotch  heritage  according  to  the  law  of  Scotland,  and  the  ques- 
tion thereupon  arose  whether  the  Scotch  heir,  claiming  the  heri- 
table bonds  as  heir,  was  also  entitled  to  share  in  the  personalty 
as  legatee  under  the  English  will,  without  throwing  the  heri- 
table bonds  into  hotchpot  or  being  put  to  his  election.  It  was 
held  that  the  terms  of  the  will  must  be  construed  according  to 
the  laws  of  England  (lex  domicilii),  and  that  by  the  law  of 
England  the  terms  used  were  not  such  as  to  import  an  intention 
to  transfer  any  real  estate  of  the  testator;  that  the  law  of  Eng- 
land did  not  require  a  legatee  who  was  also  heir  to  throw  his 
inherited  lands  into  hotchpot  or  else  to  elect;  and  therefore  that 
the  heir  was  entitled  both  to  the  heritable  bonds  and  also  to  his 
share  of  the  personalty  under  the  will.  In  this  case  the  forum 
was  the  domicil,  but  it  is  apprehended  the  same  result  would 
have  been  reached  had  the  question  arisen  before  the  Scotch 
courts. 

§147.  Seune — Lapse  —  Election. — In  accordance  with  the 
general  principles  already  alluded  to,  the  law  of  the  testa- 
tor's domicil  will  determine  the  effect  of  a  lapse  by  the  death 

s  See  Slaughter  v.  Garland,  40  Miss.  172,  180. 

«  4  Bligh,  N.  s.  502  ;  s.  c.  3  Wils.  &  Sh.  407. 

^  Heritable  bonds,  under  the  law  of  Scotland,  are  bonds  chargeable  pri- 
marily on  the  real  estate  of  a  decedent,  and  descend  to  the  heir  of  the  creditor, 
not  to  his  uersonal  representative. 


344    INTKBPBETATION  OF  WILL  — LAPSE  — KLBCTION.    §147 

of  a  legatee  or  devisee ;  that  is,  whether  his  share  is  to  descend 
to  his  children,  heirs,  or  distributees,  or  whether  as  to  it  the 
testator  shall  be  regarded  as  having  died  intestate,  or  whether 
it  shall  be  added  to  the  residuary  devise  or  bequest,  if  any.  It 
is  a  contingency  which  the  testator  has  not  provided  for,  and 
his  silence  should  be  interpreted  in  accordance  with  the  law  of 
his  domicil.^ 

Another  frequent  instance  of  the  application  of  these  prin- 
ciples arises  in  case  of  provisions  made  for  a  widow  by  way  of 
jointure,  in  lieu  of  dower.  This  subject  is  largely  regulated 
by  statute  in  most  of  the  States,  but  the  statutes  vary  consider- 
ably with  respect  to  the  effect  to  be  given  such  provisions  as  a 
bar  to  the  widow's  dower  or  distributive  share.  If  the  husband 
in  his  will  provides  for  the  wife,  but  the  will  is  silent  as  to  its 
being  a  substitute  for  her  ordinary  marital  rights,  the  question 
whether  the  testamentary  provision  shall  be  so  taken  is  a  matter 
of  the  interpretation  of  the  will,  and  as  such  is  to  be  determined 
in  general  by  the  law  of  the  testator's  domicil.  So  far  as  her 
distributive  share  in  his  personalty  is  concerned,  the  law  of  the 
testator's  domicil  is  supreme,  wherever  the  property  may  be. 
Hence,  whether  the  widow  shall  be  given  both  funds,  or  whether 
she  will  be  allowed  only  the  testamentary  provision,  or  whether 
she  will  be  required  or  entitled  to  elect  between  the  two,  is  to 
be  determined  by  the  lex  domicilii  of  the  testator.* 

As  between  the  testamentary  provision  made  for  her  and 
her  dower  in  lands  situated  abroad,  though  the  wife  cannot 
be  barred  of  her  dower  by  such  a  provision,  unless  it  is  per- 
mitted by  the  lex  situs  of  the  land  (since  that  would  be  to  affect 
the  title  to  the  land),'  yet  upon  ordinary  principles  of  election, 
if  the  lex  domicilii  of  the  testator  forbids  the  wife  to  take  both 

1  Rockwell  V.  Bradshaw,  67  Conn.  9,  34  Atl.  758  ;  Anstruther  v.  Ckalmer, 
2  Sim.  1  ;  Thornton  v.  Curling,  8  Sim.  310.  The  hx  domicilii  of  the  legatee 
or  devisee,  or  the  lex  situs  of  the  property,  has  no  part  in  the  solution  of  this 
question. 

3  Slaughter  v.  Garland,  40  Miss.  172. 

*  See  Jennings  v.  Jennings,  21  Ohio  St.  56  ;  Staigg  v.  Atkinson,  144  Masi 
564,  12  N.  E.  354 ;  Washburn  v.  Van  Steenwyk,  32  Minn.  336,  20  N.  W. 
824  ;  Van  Steenwyk  v.  Washburn,  59  Wis.  483,  17  N.  W.  289.    ' 


§  147    INTERPRETATION  OF  WILL  —  LAPSE  —  ELECTION.    345 

her  dower  and  the  testamentary  provision,  the  courts  of  the  situa 
of  the  land  will  require  the  wife  to  elect,  though  under  the  lej 
situs,  if  the  will  were  to  be  interpreted  by  that  law,  the  widow 
would  be  allowed  both  provisions.* 

Furthermore,  it  seems  to  be  settled  that  the  proper  course  to 
be  pursued  by  the  widow  in  such  cases,  in  the  event  that  the 
law  of  the  testator's  domicil  requires  her  to  elect  between  the 
testamentary  provision  and  her  marital  rights,  is  to  make  her 
election  in  the  courts  of  the  testator's  domicil.  Such  an  election 
will  definitely  establish  her  status  with  respect  to  her  husband's 
property  everywhere  once  for  all.  K  on  the  other  hand  she 
should  be  permitted  to  elect  in  the  courts  of  another  State,  it 
might  result  that  she  has  renounced  the  will  in  one  jurisdiction 
and  elected  to  hold  under  it  in  another,  according  as  her  interest 
dictates.  This  would  be  both  inconvenient  and  in  direct  con- 
travention of  the  testamentary  intention,  as  construed  by  the 
lex  domicilii.  The  safer  rule  would  seem  to  be  always  to  require 
the  widow  to  make  her  election  in  the  courts  of  the  testator's 
domicil  in  the  first  instance.^ 

And  if  the  widow  is  under  disabilities,  such  as  lunacy,  so  as 
to  be  incapable  of  making  an  election  for  herself,  it  seems  the 
courts  of  the  domicil  have  the  sole  jurisdiction  to  make  the  elec- 
tion for  her.  At  least,  if  the  election  is  made  by  the  domiciliary 
courts,  the  decree  is  in  the  nature  of  a  decree  in  rem,  which  will 
be  conclusive  in  the  courts  of  all  other  States.' 

In  Slaughter  v.  Garland,''  a  testator  domiciled  in  Virginia, 
possessed  of  certain  personalty  in  Mississippi,  provided  for  his 
wife  in  his  will.  She  renounced  the  testamentary  provision 
made  for  her  in  the  Virginia  court  of  probate.  By  the  law  of 
Virginia  she  was  entitled  to  one  third  of  her  husband's  person- 
alty as  his  distributee.     The  Mississippi  law  gave  the  widow 

*  Washburn  ».  Van  Steenwyk,  32  Minn.  336,  20  N.  W.  324. 

6  Slaughter  v.  Garland,  40  Miss.  172  ;  Washburn  v.  Van  Steenwyk,  32 
Minn.  336,  20  N.  W.  324. 

«  Slaughter  r.  Garland,  40  Miss.  172  ;  Washburn  v.  Van  Steenwyk,  33 
Minn.  336,  20  N.  W.  324  ;  Van  Steenwyk  v.  Washburn,  59  Wis.  483,  17  N.W. 
K9. 

1  40  Miss.  172. 


346    INTEBPRETATIONOF  WILL  — LAPSE  — ELECTION.    §147 

one  half  the  personalty  as  her  intestate  husband's  distributee, 
and  made  this  applicable  to  all  property  situated  in  that  State, 
regardless  of  marital  rights  which  might  have  accrued  in  other 
States.  The  question  was  whether  the  widow's  renunciation  in 
the  Virginia  courts  operated  to  make  the  husband  intestate  in 
Mississippi,  and  therefore  made  the  law  of  that  State  applicable 
so  as  to  entitle  her  to  one  half  instead  of  one  third  of  her  hus- 
band's personalty.  The  Mississippi  court  held  that  the  Virginia 
court  was  the  proper  place  for  the  wife's  renunciation  to  be 
made ;  that  that  renunciation  did  not  render  the  husband 
"intestate"  in  the  sense  used  by  the  Mississippi  statutes  ap- 
plicable to  all  property  of  intestates  within  its  limits,  regard- 
less of  the  owner's  residence;  that  the  general  rule  that  the  lex 
domicilii  of  the  deceased  owner  governs  the  distribution  of  his 
personalty  would  therefore  apply;  and  that  the  widow's  share  in 
the  husband's  Mississippi  personalty  should  be  determined  by 
the  Virginia  law. 

Cases  of  election  may  also  arise  where  the  testator,  possessed 
of  real  and  personal  property,  makes  a  will  disposing  of  it  all, 
the  will  being  valid  by  the  law  of  his  domicil  (as  respects  the 
personalty)  or  by  the  lex  situs  of  some  of  the  realty,  but  invalid 
as  to  the  rest  of  the  land  by  its  lex  situs,  a  beneficiary  under 
the  will  being  also  an  heir  to  the  property  as  to  which  the  will 
is  invalid.  In  such  cases  the  beneficiary  (and  heir)  is  generally 
required  to  elect  between  the  valid  benefit  conferred  upon  him 
and  the  property  to  which  he  succeeds  as  heir.* 

In  Brodie  v.  Barry,'  a  testator  domiciled  in  England  left  all 
his  real  and  personal  property  upon  trusts  for  the  benefit  of 
his  nephews  and  nieces.  The  land  was  in  Scotland,  and  the 
will  was  insufficient  under  the  Scotch  law  to  pass  the  realty. 
Only  one  of  the  beneficiaries  could  under  the  law  of  Scotland 
succeed  as  heir  to  the  land  there.  The  others  sought  to  make 
her  elect  in  the  English  court  of  chancery,  and  Sir  William 
Grant  compelled  her  to  do  so. 

8  Brodie  v.  Barry,  2  Ves.  &  B.  127 ;  Balfonr  v.  Scott,  6  Bro.  P.  C.  550, 
cited  in  Brodie  v.  Barry ;  Washburn  v.  Van  Steenwyk,  32  Minn.  336,  20 
N.  W.  324.  See  Rice  v.  Harbeson,  63  N.  Y.  493.  But  see  Maxwell  v.  Max* 
irell,  3  DeG.  M.  &  G.  705  ;  Maxwell  i;.  Hyslop,  L.  R.  4  Eq.  407. 

•  a  Ves.  &  B.  127. 


§  148   INTERPRETATION  OF  WILL  — DOMICIL  CHANGED.   347 

§  148.  Same  —  Change  of  Domicil  eifter  Execution  of  Will 
—  We  have  heretofore  supposed  that  the  testator's  domicil  at 
the  time  of  the  execution  of  the  will  has  remained  unchanged 
up  to  the  time  of  his  death.  In  such  case,  in  the  absence  of 
contrary  evidence,  we  have  seen  that  he  will  be  presumed  to 
have  in  mind,  when  he  uses  certain  ambiguous  words  or  phrases, 
the  meaning  attached  to  such  terms  by  the  law  or  vernacular  of 
his  domicil. 

But  it  may  be  that  the  testator,  though  domiciled  in  one 
State  when  he  executes  the  will,  has  subsequently  at  some  time 
before  his  death  removed  permanently  to  another  State,  where 
he  dies,  without  revoking  his  will  executed  in  the  first  domicil, 
and  without  executing  a  new  one  in  his  last  domicil.  And  the 
meaning  attached  to  the  terms  he  has  used  in  the  will  in  the 
last  domicil  may  differ  from  that  attached  to  the  same  terms  in 
his  first  abode. 

Under  such  circumstances,  it  becomes  a  matter  of  extreme 
difficulty  to  determine  by  which  law  (or  usage)  the  ambiguous 
phrases  shall  be  interpreted,  whether  by  the  law  of  the  domicil 
at  the  time  of  the  execution  of  the  will  or  at  the  time  of  the 
testator's  death.  Weighty  arguments  may  be  advanced  to  up- 
hold either  position.^     The  point  was  raised   in  Harrison  v. 

1  Thus,  in  favor  of  the  law  of  the  last  domicil,  it  may  be  said :  (1 )  That 
the  whole  subject  of  wills  of  personalty  is  thus  made  to  depend  upon  the 
same  law,  the  law  of  the  testator's  last  domicil  being  the  law  upon  which  de- 
pends the  validity  of  the  will  so  far  as  concerns  either  the  capacity  of  the  tes- 
tator, the  formal  validity  of  the  will,  or  its  substantial  validity  ;  and  that  to 
allow  a  different  law  to  govern  its  interpretation  or  construction  would  be  in- 
congnious  and  inharmonious.  See  Cross  v.  Trust  Co.,  131  N.  Y.  330,  349. 
But  this  argument  overlooks  the  fact  that  the  interpretation  of  a  will  rests 
upou  a  very  different  foundation  from  matters  of  validity.  The  former  is 
based  upon  the  intention  of  the  testator,  while  the  latter  is  independent  of 
intention,  and  rests  upon  the  policy  of  the  law.  Logically  therefore  there  is 
no  reason  why  the  same  law  should  govern.  (2)  A  second  and  more  powerful 
argument  in  favor  of  the  law  of  the  last  domicil  is  to  be  found  in  the  rule 
that  wills  speak  as  of  the  death  of  the  testator,  not  as  of  the  time  of  their 
execution.  See  Moultrie  v.  Hunt,  23  N.  Y.  394  ;  Wynne  r.  Wynne,  23  Miss. 
251,  57  Am.  Dec.  139  ;  Lincoln  v.  Perry,  149  Mass.  368,  374.  It  may  be 
argued  that  although  the  testator  may  have  attached  to  his  words  when  ha 
wrote  them  the  meaning  given  them  by  the  law  of  his  then  domicil,  yof 


348    INTERPRETATION  OF  WILL  —  DOMICIL  CHANGED.    §  148 

Nixon/  but  was  left  undecided.  Notwithstanding  some  dicta 
to  the  contrary,'  the  better  view  is  believed  to  be  that  the  law 
of  the  domicil  at  the  execution  of  the  will  is  to  govern  its  in- 
terpretation and  construction.* 

when  he  changes  his  domicil  to  a  State  whose  law  gives  a  dififerent  meaning 
to  the  words  used,  it  must  be  supposed  that  he  is  as  familiar  with  the  latter 
law  as  with  the  first,  and  that  if  he  had  desired  the  words  to  have  retained 
their  first  meaning,  he  would  have  altered  the  language  so  as  to  convey  that 
meaning  under  the  law  of  his  new  domicil.  See  Moultrie  v.  Hunt,  23  N.  Y. 
394,  400. 

On  the  other  hand,  it  may  be  urged  in  favor  of  the  domicil  at  the  time 
the  will  is  executed,  that  since  the  law  (and  usage)  of  that  State  certainly 
determines  primarily  the  meaning  to  be  given  to  the  words  used,  the  will 
as  the  testator  wrote  it  is  to  be  construed  in  accordance  therewith  ;  that 
such  was  the  meaning  intended  by  the  testator,  and  such  was  his  will ;  that 
he  can  only  alter  that  will  by  revoking  it,  or  by  executing  a  new  will  or  a 
codicil,  without  which  no  subsequent  change  of  intention  on  his  part  would 
be  of  any  effect ;  that  the  will  is  made  up,  not  only  of  the  words  the  testator 
has  used,  but  also  of  the  meaning  to  be  attached  to  those  words  ;  that  the 
words,  as  first  written,  with  the  meaning  then  attached  to  them,  constitute 
his  will ;  and  that  it  cannot  be  revoked  and  a  new  will  substituted  for  it, 
except  by  the  ceremonies  required  by  law  for  the  revocation  of  a  will  and 
the  execution  of  a  new  one.  See  Staigg  v.  Atkinson,  144  Mass.  564,  569, 
12  N.  E.  354 ;  Holmes  v.  Holmes,  1  Russ.  &  Myl.  660,  662,  663. 

It  is  tnie  that  a  will  speaks  as  at  the  death  of  the  testator,  not  as  at  its 
execution,  so  far  as  relates  to  the  property  owned  by  the  testator,  which  may 
pass  under  the  terms  of  his  will ;  but  this  is  not  so  much  a  question  of  the 
intention  of  the  testator  —  of  what  property  he  intends  shall  pass  under  the 
will.  It  is  in  larger  measure  a  question  of  testamentary  capacity ;  that  is, 
even  supposing  his  intention  fixed  to  dispose  of  all  his  property  now  or 
hereafter  owned,  it  is  a  question  whether  he  has  the  capacity  to  dispose  of 
such  as  he  acquires  after  the  execution  of  the  will.  See  Wynne  p.  Wynne, 
23  Miss.  251,  57  Am.  Dec.  139,  142.  This  question  of  testamentary  capacity, 
and  incidentally  the  question  of  the  testator's  intention  with  respect  to  the 
disposition  of  after  acquired  property,  is  settled  by  the  rule  that  the  will 
speaks  as  at  the  death  of  the  testator.  But  it  leaves  untouched  the  inten- 
tion of  the  testator  in  other  respects  and  the  interpretation  of  language  used 
in  other  connections. 

«  9  Pet,  483. 

8  Ford  17.  Ford,  70  Wis.  19,  33  N.  W.  188,  195.  See  Merrill  v.  Preston, 
135  Mass.  451  ;  Story,  Confl.  L.  §  479  g. 

*  Staigg  V.  Atkinson,  144  Mass.  564,  569,  12  N.  E.  354 ;  Holmes  v.  Holmes, 
1  Russ,  &  Myl.  660,  662,  663.     See  Merrill  v.  Preston,  135  Mass.  451. 


§  149  REVOCATION   OF   WILLS.  34U 

It  may  at  least  be  asserted  positively  that  the  law  ct  usaga 
of  a  domicil  possessed  prior  to  the  execution  of  the  will  i# 
not  generally  to  be  regarded,  if  at  the  time  of  its  executior 
the  testator  was  domiciled  in  another  State.* 

§  149.  Revocation  of  'Wills.  —  With  respect  to  wills  of  reo^ 
estate,  the  effect  of  an  act  of  revocation  will  in  general  be  de- 
termined by  the  lex  situs,  whether  the  revocation  be  express  o» 
implied.^  Thus,  in  Ware  v.  Wisner,*  a  foreign  testator  deviseft 
certain  lands  situated  in  Iowa.  Afterwards  an  heir  was  born  t^ 
the  testator.  It  was  held  that  the  effect  of  the  subsequent  birtfc 
of  the  heir  as  a  revocation  of  the  will  should  depend  upon  thf< 
lex  situs  of  the  land,  and  the  will  was  declared  revoked. 

With  respect  to  wills  of  personalty,  on  the  other  hand,  th* 
effect  of  an  act  of  revocation  will  depend  upon  the  law  of  the 
testator's  domicil,  whether  the  revocation  be  express,  as  bv 
the  execution  of  a  new  will,  or  the  destruction  of  the  old,  animc 
revocandi,  etc.,  or  whether  it  arises  by  implication  of  law,  as 
by  the  testator's  marriage,  the  birth  of  pretermitted  children^ 
etc.* 

It  should  be  specially  observed  that  the  revocation  of  a  will, 
whether  express  or  by  implication,  is  not  a  continuing  act,  but 
once  validly  accomplished  the  revocation  is  complete  and  final; 
the  will  at  once  and  forever  loses  its  efficacy  as  a  will,  unless 
afterwards  republished  or  re-executed.  It  follows  therefore  that 
no  subsequent  subjection  of  the  testator  to  the  law  of  a  new  dom- 
icil will  alter  the  effect  of  a  revocation  once  validly  completed 
and  perfected.     Hence  no  subsequent  change  of  domicil  by  the 

5  Anstruther  v.  Chalmer,  2  Sim.  1  ;  Lincoln  v.  Perry,  149  Mass.  368,  374. 

1  Ware  v.  Wisner,  50  Fed.  310  ;  Sneed  v.  Ewing,  5  J.  J.  Marsh.  (Ky.)  460, 
22  Am.  Dec.  41,  53,  55  ;  Wynne  v.  Wynne,  23  Miss.  251,  57  Am.  Dec.  139. 
An  exception  will  probably  arise  if  the  revocation  is  dependent  upon  the  in- 
terpretation of  ambiguous  words  in  a  subsequent  wilL  As  shown  in  the 
preceding  section,  the  interpretation  of  such  words  will  depend  upon  the  law 
of  the  testator's  domicil  at  the  execution  of  the  subsequent  wilL 

2  50  Fed.  310. 

3  Price  V.  Dewhurst,  8  Sim.  437  ;  Sneed  v.  Ewing,  5  J.  J.  Marsh.  (Ky. ) 
460,  22  Am.  Dec.  41,  55  ;  Succession  of  Packwood,  9  Rob.  (La.)  438,  41  Am. 
Dec.  341,  347  ;  Senac's  Will,  2  Rob.  (La.)  258.  See  Bloomer  v.  Bloomer, 
2  Bradf.  (N.  Y. )  339. 


350  BEVOCATION   OF   WILLS.  §  149 

testator  to  a  country  by  whose  law  a  prior  act  of  revocation, 
effectual  in  a  former  domicil,  would  cease  to  have  that  effect, 
will  of  itself  suffice  to  revivify  the  will,  which  once  legally  killed 
is  dead  forever,  unless  resurrected  by  the  act  of  the  testator  him- 
self, as  by  a  re-execution  of  the  will.  It  is  always  therefore  the 
testator's  domicil  at  the  time  of  the  occurrence  of  the  act  relied 
upon  as  a  revocation,  which  will  determine  its  effect. 

Thus  if  the  alleged  revocation  be  by  tearing  or  burning  the 
will,  animo  revocandi,  the  law  of  the  testator's  domicil  at  the 
time  of  the  acts  in  question  will  determine  whether  they  operate 
as  a  revocation.  If  the  prior  will  be  alleged  to  be  revoked  by  a 
subsequent  will,  the  effect  of  the  latter  in  revoking  the  former 
would  seem  to  depend  in  the  first  instance  upon  whether  the 
subsequent  will  operates  immediately  to  revoke  the  first  will 
completely  and  finally,  or  only  so  operates  after  the  testator's 
death,  when  it  has  itself  ceased  to  be  revocable.  If  it  operates 
immediately,  the  law  of  the  testator's  domicil  at  the  time  of  the 
execution  of  the  subsequent  will  would  govern;  if  only  after  the 
testator's  death,  the  law  of  his  Uxst  domicil  will  control.  And 
whether  the  revoking  wiU  is  to  operate  an  immediate  revocation 
of  the  former,  or  is  to  operate  only  post  mortem,  must  be  deter- 
mined by  the  law  of  the  testator's  domicil  at  the  time  of  the 
execution  of  the  last  will ;  for  if  the  first  is  thereby  revoked 
immediately,  no  subsequent  change  of  domicil  will  revive  it.* 

In  Price  v.  Dewhurst,®  A  and  his  wife,  domiciled  in  the 
Danish  island  of  St.  Croix,  made  a  joint  will  (which  under  the 
Danish  law  could  only  be  revoked  jointly),  by  which  they  be- 
queathed certain  legacies.  They  afterwards  became  domiciled 
in  England,  and  the  husband  made  a  new  will  bequeathing  his 
share  of  their  joint  property  to  his  wife.  After  his  death,  the 
wife  also  made  a  new  will  bequeathing  her  property  to  other 
legatees  than  those  named  in  the  joint  will.  The  question  was 
whether  the  testators  could,  under  the  law  of  a  subsequent  dom- 
icil (England),  make  separate  wills  which  would  operate  to  re- 

*  All  these  results  flow  from  the  one  principle  that  a  revocation  is  not  a 
continuing  act,  but  takes  effect  once  and  for  alL  See  Cottrell ».  Cottrell,  L.  K 
2  P.  fc  M.  397. 

»  8  Sim.  437. 


§  150        WILLS   UNDER   POWER   OF   APPOINTMENT.  351 

yoke  the  joint  will  executed  when  they  were  domiciled  in  St. 
Croix,  and  which,  under  Danish  law,  could  only  be  revoked  by 
their  joint  act.  It  was  held  that  the  law  of  their  domicil  at  the 
iate  of  the  execution  of  the  revoking  wills  and  at  the  time  of 
their  deaths  should  determine  the  effect  of  those  wills  in  revok- 
ing the  joint  will. 

The  same  principle  applies  to  revocations  implied  from  the 
subsequent  marriage  of  the  testator,  the  subsequent  birth  of  pre- 
termitted children,  etc.  It  is  the  testator's  domicil  at  the  time 
of  the  circumstance  relied  upon  to  show  a  revocation  that  will 
furnish  the  "proper  law"  to  determine  its  effect. 

Thus,  in  the  case  of  an  alleged  revocation  by  reason  of  a  sub- 
sequent marriage,  the  law  of  the  testator's  domicil  at  the  time 
of  the  marriage  will  determine  whether  it  has  revoked  the  will. 
The  fact  that  the  testator  afterwards  changed  his  domicil  to  a 
State  whose  law  would  have  given  a  different  effect  to  the  act  of 
marriage  is  immaterial,  and  so  is  the  fact  that  the  law  of  the 
place  of  marriage  is  different.* 

So,  in  the  case  of  a  pretermitted  child,  if  it  is  the  hirth  of  the 
child  which  by  the  law  of  the  testator's  domicil  at  that  time  con- 
stitutes a  revocation  of  his  will,  it  stands  revoked,  and  is  not 
revived  by  removal  to  a  new  domicil  whose  law  is  different.  If, 
by  the  law  of  the  testator's  domicil  at  the  time  of  the  birth  of 
the  pretermitted  child,  it  is  not  the  hirth  of  the  child  which  re- 
vokes the  will,  but  the  death  of  the  testator,  leaving  the  child 
unprovided  for  (or  if  the  child  be  born  after  the  testator's  death), 
it  is  the  law  of  the  testator's  last  domicil  that  is  to  govern  the 
question.' 

§  150.  Wills  in  the  Exercise  of  a  Power  of  Appointment.  — 
It  is  a  peculiar  characteristic  of  a  transfer  of  property  made  in 
the  exercise  of  a  power  of  appointment  that  the  law  overlooks 
the  intermediate  instrument  through  which  the  appointment  is 
made,  and  regards  the  appointee  as  in  possession  by  virtue  of 
a  direct  transfer  from  the  original  owner  (by  the  deed  or  will  he 

«  See  Goods  of  Reid,  L.  R.  1  P.  &  D.  74. 

'  See  Sneed  v.  Ewing,  5  J.  J.  Marsh.  (Ky.)  460,  22  Am.  Dec.  41 ;  Succe* 
eion  of  Packwood,  9  Rob.  (La.)  438,  41  Am.  Dec.  341,  347. 


362  WILLS   UNDER   POWER   OF   APPOINTMENT.       §  150 

has  used  to  create  the  power),  and  not  under  the  instrument 
through  which  the  appointment  is  made. 

The  original  owner  of  the  property  is  styled  the  donor  of  the 
power;  the  person  upon  whom  is  bestowed  the  power  to  appoint 
is  the  donee  of  the  power ;  and  the  person  appointed  by  the  donee 
to  take  the  property  is  the  appointee.  Thus,  if  A  (the  donor  of 
the  power)  by  will  leaves  his  property  to  B  (the  donee  of  the 
power)  for  life,  and  after  B's  death,  to  whomsoever  B  by  last 
will  shall  appoint,  and  B  wills  it  to  C  (the  appointee  under  the 
power),  C  is  considered  as  holding  the  property  under  A's  will, 
and  not  under  B's.  B  is  merely  the  channel  through  which 
A's  will  operates.  The  property  given  to  C  belongs  to  A,  not 
to  B.^ 

Since  it  is  the  will  of  the  donor  of  the  power  which  really 
operates  to  transfer  the  estate  to  the  appointee,  the  law  govern- 
ing the  donor's  will,  not  that  controlling  the  donee's,  should 
determine  most  of  the  questions  that  arise. 

If  the  property  disposed  of  be  real  estate,  difficulties  are  not 
likely  to  arise,  though  the  donor  of  the  power  and  the  donee  re- 
side in  different  States ;  for  the  lex  situs  of  the  land  will  usually 
govern  under  any  circumstances.^  But  if  it  be  personalty,  the 
lex  domicilii,  not  the  lex  situs,  is  to  be  looked  to.  The  diffi- 
culty in  such  case  is  to"  determine  whether  the  proper  law  appli- 
cable to  the  particular  question  is  the  lex  domicilii  of  the  donor 
of  the  power  or  of  the  donee,  if  they  reside  in  different  States. 

With  respect  to  the  capacity  of  the  donee  to  make  a  will  in 
the  exercise  of  the  power,  the  better  opinion  seems  to  be  that 
this  is  not  really  a  testamentary  capacity  at  all,  as  nothing 
passes  under  the  donee's  will,  but  is  rather  to  be  viewed  as  the 
execution  of  an  authority  conferred  upon  an  agent.  Whether 
such  an  authority  can  legally  be  conferred  upon  the  donee  de- 

1  See  Sewall  v.  Wilmer,  132  Mass.  131 ;  Bingham's  Appeal,  64  Penii.  St. 
345 ;  Cotting  v.  De  Sartiges,  17  R.  I.  668,  24  Atl.  530. 

a  Poison  V.  Stewart,  167  Mass.  211,  218,  45  N.  E.  737.  See  Sewall  v.  Wil- 
mer, 132  Mass.  131,  138.  Except  perhaps  with  regard  to  the  interpretation 
of  the  donee's  will,  which  is  not  dependent  upon  the  lex  situs,  and  is  probably 
governed  by  the  s«me  principles  as  if  the  property  wei-e  personalty.  Ante. 
1145. 


§  150       WILLS   UNDER  POWER   OF   APPOINTMENT.  363 

pends  (it  is  said)  upon  the  law  governing  the  validity  of  the 
donor's  will.' 

So  since  the  real  disposition  to  be  looked  to  is  that  of  the 
donor  of  the  power,  the  substantial  or  essential  validity  of  the 
provisions  of  the  donee's  will  in  the  exercise  of  the  power  must 
be  regulated  by  the  law  and  policy  of  the  donor's  domicil,  not 
the  donee's.* 

But  with  regard  to  the  proper  law  governing  the  formal  valid- 
ity of  the  donee's  will  in  the  exercise  of  the  power,  it  would 
seem  upon  principle  that  the  donee's  will  in  that  respect  should 
be  controlled  by  the  lex  domicilii  of  the  donee,  —  at  least  if  the 
donor's  will  only  provides  for  an  appointment  "by  the  donee's 
will,"  without  more.  In  such  event,  the  instrument  of  appoint- 
ment must  be  the  donee's  "will."  It  is  difficult  to  see  how 
this  provision  is  complied  with,  if  the  instrument  is  not  a  will; 
and  it  would  seem  that  the  fact  that  it  would  have  been  a  will, 
if  executed  by  one  resident  in  the  donor's  domicil,  does  not 
make  it  a  "  will "  of  the  donee  resident  in  another  State,  where 
it  is  no  will.^ 

With  regard,  lastly,  to  the  proper  law  controlling  the  inter- 
pretation  of  the  language  used  in  the  donee's  will,  the  question 
is  simply  as  to  the  meaning  and  intention  of  the  donee  —  at 
least  in  those  cases  where  he  has  a  discretion  as  to  the  estate  to 
be  disposed  of  or  as  to  the  appointees  ?  Who  are  intended  by 
the  donee  to  be  the  appointees  ?  What  property  or  interest  does 
he  intend  them  to  take  ?  To  what  extent  has  the  donee  in- 
tended to  execute  the  power? 

Upon  principle  it  would  seem  that  these  questions  should  be 
answered  as  similar  ones  are  answered  respecting  the  meaning 

»  Dicey,  Confl.  L.  701,  702.  See  Cotting  v.  De  Sartiges,  17  R.  I.  668,  24 
Atl.  530.  It  might  be  otherwise  in  cases  where,  in  default  of  appointment, 
the  property  is  to  remain  in  the  family  of  the  donee. 

*  See  Sewall  v.  Wilmer,  132  Mass.  131,  137. 

6  But  see  Story,  Confl.  L.  §  473  a  ;  Whart.  Confl.  L.  §  590.  In  Sewall  v. 
Wilmer,  132  Mass.  131, 137,  it  is  said  that  the  law  of  the  donor's  domicil  should 
control  the  formal  validity  of  the  donee's  will.  But  in  that  case  the  power 
conferred  was  to  transfer  the  property  as  the  donee  "  should,  by  deed  in  writ- 
ing, or  by  last  will,  or  hy  any  writing  purporting  to  be  h&r  last  wUl,  appoint.' 
The  court  based  its  decision  on  the  last  clause. 

28 


354  WILLS  UNDBK   POWER   OF  APPOtNTMBNT.       §  150 

and  intention  of  an  ordinary  testator,  namely,  by  an  appeal  to 
the  law  and  usage  of  the  donee's  domicil,  with  the  language  of 
which  he  is  supposed  to  be  more  intimately  acquainted.'  And 
it  is  probably  true  that  the  law  of  the  donee's  domicil  will 
furnish  the  answers  to  such  questions  as  the  first  two  above 
mentioned. 

Nor  is  it  easy  to  see  why  the  same  rule  should  not  apply  to 
the  third  question  also.  It  is  admitted  that  the  donee,  by 
choice  or  by  accident,  may  fail  to  execute  the  power.  Whether 
he  executes  it  or  not  is  a  matter  of  choice,  or  if  there  is  a  doubt 
as  to  his  having  done  so,  is  a  matter  of  Ms  intention,  not  the 
donor's.  Yet  the  few  cases  that  have  passed  upon  the  question 
have  held  that  in  the  event  of  an  ambiguity  or  a  doubt  as  to 
whether  the  donee  has  intended  by  his  will  to  include  the  prop- 
erty over  which  he  has  the  power  of  appointment,  that  doubt  is 
to  be  resolved  by  an  appeal  to  the  law  of  the  donor's  domicil,  not 
to  that  of  the  donee's.'' 

Thus  in  Sewall  v.  Wilmer,"  the  donor  of  the  power  resided  in 
Massachusetts,  while  the  donee,  his  daughter,  was  domiciled 
with  her  husband  in  Maryland.  The  donee  died,  and  by  her 
will  left  all  her  property  to  her  husband,  without  expressly 
mentioning  the  property  over  which  she  had  a  power  of  appoint- 
ment. Under  the  law  of  Massachusetts,  it  passed  without  ex- 
press mention;  under  the  law  of  Maryland,  it  only  passed  where 
the  intent  to  make  an  appointment  was  manifest.  The  court 
held  that  the  law  of  Massachusetts  (the  donor's  domicil)  should 
govern,  upon  the  ground  that  the  property  was  the  donor's,  not 
the  donee's,  and  that  the  lex  domicilii  of  the  former  should  de- 
termine whether  or  not  the  power  had  been  executed,  and  the 
property  disposed  of.' 

«  Ante,  §§  145  et  seq. 

T  Sewall  V.  Wilmer,  132  Mass.  131  ;  Getting  v.  De  Sartiges,  17  R.  I.  668, 
24  Atl.  530 ;  Bingham's  Appeal,  64  Penn.  St.  345. 

•  132  Mass.  131. 

'In  this  case  and  the  others  holding  the  same  way,  it  is  to  be  noticed  that 
the  property  was  actually  situated  in  the  donor's  domicil,  which  was  also  the 
forum. 


§  161  EXISTENCE   OF   CONTRACT.  355 


PART  V. 

SITUS   OF   CONTRACTS. 

§  151.  Contractual  Liabilities  Transitory  —  Proper  Law  to 
determine  Existence  of  Contract.  —  Before  entering  into  a  de- 
tail^jd  investigation  of  the  "proper  law"  governing  the  various 
questions  that  may  arise  with  respect  to  foreign  contracts,  some 
preliminary  observations  must  be  made. 

Contracts  are  either  executed  or  executory.  An  executed 
contract  is  performed  as  soon  as  entered  into,  and  being  a  vol- 
untary act  of  the  contracting  party,  the  **  proper  law"  is  always 
the  law  of  the  actual  situs  of  the  party  at  the  time  of  the  trans- 
action. We  have  touched  upon  the  proper  law  governing  such 
contracts  in  our  discussion  of  the  contract  of  marriage,*  and 
have  dealt  with  them  much  more  fully  in  the  discussion  of  vol- 
untary transfers  of  property.^  The  explanations  there  given 
will  suffice ;  and  in  the  future  discussion  we  will  confine  our  at- 
tention to  contracts  executory.  These  differ  from  contracts  exe- 
cuted in  that  they  are  to  be  performed  at  another  time  and  often 
at  another  place  than  the  time  and  place  when  and  where  they 
are  entered" into.  This  characteristic  of  executory  contracts 
raises  difficulties  and  doubts  with  regard  to  the  "proper  law" 
to  regulate  the  various  phases  of  the  contract,  that  do  not  arise 
at  all  in  the  case  of  executed  contracts. 

It  has  never  been  doubted  that  liabilities  based  upon  a  valid 
contract  executory  are,  generally  speaking,  transitory  in  their 
nature,  and  enforceable  in  the  courts  of  any  country  obtaining 
jurisdiction  of  the  promisor's  person.'    But  often  the  effect  given 

1  Ante,  §§  77,  78. 

*  As  to  transfers  of  real  property,  ante,  §§  11,  12.  As  to  transfers  of  per 
sonalty,  ante,  §§  122,  128  et  aeq. 

«  See  W.  U.  Tel.  Co.  v.  Phillips,  2  Tex.  Civ.  App.  608,  21  S.  W.  638. 


356  EXISTENCE  OF   CONTRACT.  §  151 

to  a  contract  in  one  State  differs  very  materially  from  that  given 
to  it  in  another.  In  such  cases  it  becomes  necessary  to  deter- 
mine by  what  law  the  contract  is  to  be  governed  in  respect  to 
the  particular  question  at  issue.  This  frequently  presents  seri- 
ous difficulties.  Indeed  it  may  be  truly  said  that  there  is  no 
subject  in  the  law  with  regard  to  which  so  much  doubt,  uncer- 
tainty, and  confusion  exists.  The  mixed  array  of  decisions  on 
the  subject  has  been  well  described  as  "  a  trackless  forest  of 
cases."  * 

To  this  confusion  the  decisions  of  the  courts  have  contributed 
no  little  by  the  vague  and  general  expressions  often  used  in 
cases  where  precise  and  accurate  language  and  a  careful  analysis 
of  the  circumstances  are  essential  to  a  correct  conclusion,  or  at 
least  would  render  invaluable  aid  in  dissipating  the  obscurity 
enveloping  the  subject.  In  no  branch  of  the  law  have  ill-con- 
sidered and  conflicting  dicta  and  decisions  played  such  havoc 
with  principle.  It  is  of  the  utmost  importance  to  correct  con- 
clusions with  regard  to  this  subject  that  absolute  precision  of 
thought  and  language  be  used. 

A  question  which  presents  itself  at  the  very  outset  arises 
with  respect  to  the  proper  law  by  which  to  determine  whether 
any  agreement  at  all  has  been  entered  into  between  the  parties. 
A  foreign  contract  is  alleged  by  one  party  to  have  been  made, 
but  it  is  denied  by  the  other  that  he  ever  assented  to  it.  By 
the  law  of  one  State  there  may  be  a  presumption  that  he  has 
assented  to  it,  while  no  such  presumption  may  arise  in  the  other. 
In  such  a  case,  the  question  is  held  to  be  merely  a  matter  of 
evidence  (pertaining  to  the  remedy),  and  as  such  is  to  be  gov- 
erned by  the  lex  situs  of  the  remedy  (lex  fori).^ 

Thus,  in  Hoadley  v.  Transportation  Co.,*  an  engine  had  been 
delivered  to  the  defendant  at  Chicago  for  transportation  to 
Lawrence,  Mass.,  but  was  destroyed  at  Chicago  in  the  great  fire 
of  1871,  without  the  defendant's  fault.  The  defendant  had 
given  a  receipt,  excepting  liability  for  loss  by  fire  while  in 

♦  Gross  V.  Jordan,  83  Me.  380,  22  Atl.  250. 

*  Hoadley  i;.  Transportation  Co.,  115  Mass.  304  ;  The  Brantford  City,  29 
Fed.  373,  393.     See  Hartmann  v.  R.  R.  Co.,  39  Mo.  App.  88. 

•  115  Mass.  304. 


§  152  EXCEPTIONS  TO  LAW   OF  CONTEACT.  357 

depot  or  in  transit.  By  the  law  of  Illinois,  where  the  receipt 
was  given,  the  mere  acceptance  of  a  receipt  did  not  import  as- 
sent to  its  conditions  without  additional  proof;  while  by  the 
law  of  Massachusetts  (forum)  the  acceptance  of  the  receipt 
without  dissent  was  sufficient  proof  of  the  contract  and  of  as- 
sent to  all  its  exceptions  from  losses  not  arising  through  negli- 
gence. At  the  trial,  the  receipt  was  put  in  evidence  without 
further  proof  than  its  delivery  to  the  shipper.  The  plaintiff 
recovered  in  the  lower  court,  on  the  ground  that  the  law  of  Illi- 
nois governed.  But,  on  appeal,  the  lower  court  was  reversed,  on 
the  ground  that  the  question  concerned  only  the  mode  of  proof 
of  the  contract  set  up  in  the  receipt,  and  that  as  a  matter  of 
evidence  the  case  was  governed  by  the  lex  fori. 

So,  evidence  of  an  oral  contract  may  be  introduced  under  the 
lex  fori,  though  the  statute  of  Frauds  of  the  State  where  the 
contract  is  made  provides  that  no  action  shall  he  brought  upon 
such  a  contract  unless  in  writing.  It  is  a  mere  matter  of 
remedy.' 

But  if  a  contract  is  alleged  to  be  implied  from  the  circum- 
stances of  the  case,  as  an  implied  contract  to  pay  for  services 
rendered,  etc.,  this  is  not  a  matter  of  evidence,  and  is  not  to  be 
controlled  by  the  lex  fori.  The  law  of  the  place  where  the  ser- 
vices are  rendered,  and  the  implied  agreement,  if  any  to  pay 
therefor  springs  up,  determines  the  existence  or  non-existence 
of  the  contract.  Thus,  in  Crumlish  v.  Improvement  Co.,®  an 
officer  of  a  Pennsylvania  corporation  rendered  it  certain  services 
there,  and  afterwards  sued  the  corporation  in  West  Virginia  on 
a  quantum  meruit.  By  the  law  of  Pennsylvania  no  contract 
for  payment  was  implied  in  the  case  of  services  rendered  by  an 
officer  of  a  corporation.  By  the  law  of  West  Virginia  a  con- 
tract for  compensation  was  implied.  The  West  Virginia  court 
held  that  the  Pennsylvania  law  should  govern. 

§  152.  Applications  of  General  Ezceptions  to  Foreign  Law 
somewhat  restricted  in  Case  of  Executory  Contracts.  —  The 
second  chapter  of  this  work  has  been  devoted  to  a  consideration 

7  Post,  §§  173, 174,  210. 

8  38  W.  Va.  390, 18  S.  K  466.  See  also  Carnegie  v.  Morrison,  2  Met 
(Mass.)  381,  897  et  seq. 


368  EXCEPTIONS   TO   LAW   OF  CONTRACT.  §  152 

of  the  exceptions  to  the  application  of  a  proper  foreign  law. 
Omitting  here  any  mention  of  the  last  of  those  exceptions  (trans- 
actions affecting  title  to  land),  it  will  be  recalled  that  four  gen- 
eral exceptions  were  there  enumerated :  (1)  Where  the  enforce- 
ment of  the  foreign  law  would  contravene  the  policy  of  the 
forum  ;  (2)  Where  it  would  work  injustice  to  the  people  of 
the  forum  ;  (3)  Where  it  would  violate  the  canons  of  morality ; 
(4)  Where  the  foreign  law  is  penal. 

Theoretically,  these  exceptions  apply  as  fully  in  the  case  of 
foreign  executory  contracts  as  in  other  cases.  But,  practically, 
the  effect  of  some  of  them  is  much  circumscribed  by  the  fact 
that  questions  in  connection  with  executory  contracts  usually 
arise  as  between  the  parties  only,  third  persons  generally  hav- 
ing no  interest  therein  ;  and  by  the  fact  that  such  contracts  are 
voluntarily  entered  into,  and  are  therefore  controlled  in  large 
measure  by  the  law  of  the  actual  situs  of  the  parties.  It  would 
come  in  general  with  bad  grace  from  one  of  the  parties  to  after- 
wards seek  the  protection  of  his  own  law,  merely  because  the 
performance  of  the  contract  had  become  burdensome. 

There  are  instances  however  in  which  these  exceptions  will 
be  applied  to  contracts  as  well  as  to  other  matters.  Indeed,  the 
third  exception,  namely,  that  the  transaction  is  contra  bonos 
mores,  has  its  main  application  in  the  case  of  executory  con- 
tracts.^ So  the  fact  that  the  enforcement  of  a  foreign  contract 
is  contrary  to  the  interests  or  policy  of  the  forum  will  be  suffi- 
cient ground  for  substituting  the  lex  fori,  and  declaring  the 
contract  invalid,  though  valid  by  its  proper  law.* 

The  second  exception,  injustice  or  detriment  to  the  citizens 
of  the  forum,  is  of  less  frequent  application.  Indeed  some  of 
the  courts  deny  its  existence  altogether  as  applied  to  executory 
contracts.  Such  transactions  having  been  voluntarily  entered 
into  abroad,  and  the  parties  having  deliberately  submitted 
themselves  to  a  foreign  law,  they  will  not  be  permitted  to  claim 
(according  to  this  view)  in  the  courts  of  their  own  State  that 
the  enforcement  of  their  contract  will  work  a  hardship  or  a 
detriment  to  them.     This  exception  applies  to  executory  con- 

1  Ante,  §  9.  •  Ante,  §  6. 


§  152     EXCEPTIONS  TO  LAW  OF  CONTRACT.       359 

tracts  (and  even  this  is  denied  by  many  coarts)  only  in  cases  of 
incapacity  to  contract,  where  the  law  of  the  party's  domicil  has 
afforded  him  protection,  because  of  some  legal  disability,  there 
deemed  sufficient  to  incapacitate  him  from  contracting.  Under 
such  circumstances,  the  protection  afforded  by  the  lex  domi- 
cilii against  the  party's  domestic  contracts  will  sometimes, 
when  his  foreign  contract  is  sought  to  be  enforced  in  the  domi- 
cil (forum),  be  held  to  protect  him  against  the  effect  of  his  for- 
eign contracts  also.  This  matter  of  capacity  is  the  only  one  in 
respect  of  which  the  second  exception  can  be  said  to  apply  to 
executory  contracts.  Capacity  is  a  passive  quality,  not  an  ac- 
tive step  in  the  making  of  a  contract.' 

The  fourth  exception  (where  the  foreign  law  is  penal)  also 
has  an  occasional  application  to  contracts,  in  cases  where,  by 
way  of  punishment,  or  as  the  result  of  punishment,  a  person  is 
incapacitated  to  enter  into  particular  contracts.  Such  is  the 
case  of  a  guilty  party  to  a  divorce  suit  who  is  prohibited  to 
marry  again.* 

'  This  has  been  folly  discussed  in  connection  with  the  law  governing  capa- 
city.    See  ante,  §§  72,  73. 

*  This  however  is  a  case  of  an  executed  contract.  An  instance  of  the  ap- 
plication of  this  exception  to  executory  contracts  would  be  difficult  to  find, 
since  punishments  do  not  usually  take  the  turn  of  prohibiting  the  party  to 
contract.  Penal  disabilities  in  general  have  been  discussed.  See  ante, 
§§  10,  74. 


360     SITUS  OF  OONTBACT  —  CONFLICTING  VIEWS.     §153 


CHAPTER  XV. 

LOCUS  CONTRACTUS. 

§  153.  Conflicting  Views  as  to  Situs  of  Contract.  —  (1)  If 
we  suppose  a  contract  made  in  England,  to  be  performed  there, 
in  consideration  of  an  act  done  there  by  the  promisee,  and  an 
action  to  be  brought  there  for  its  breach,  we  have,  from  the 
standpoint  of  the  English  courts,  a  purely  domestic  contract. 
No  foreign  element  whatever  enters  into  it,  and  therefore  there 
is  no  room  for  the  application  of  the  principles  of  private  inter- 
national law. 

(2)  The  other  circumstances  remaining  the  same,  if  we  sup- 
pose that  suit  is  brought  upon  the  above  contract  in  New  York, 
the  situs  of  the  remedy  has  been  shifted  to  New  York,  but  the 
situs  of  the  contract  remains  unquestionably  in  England.  The 
most  ordinary  comity  and  sense  of  justice  demands  in  such  a 
case  that  the  mere  accident  of  suit  being  brought  in  New  York 
should  not  constitute  any  ground  for  giving  the  parties  a  differ- 
ent measure  of  justice  than  would  be  meted  out  to  them  in  Eng- 
land. The  law  of  England  should  govern  the  contract  in  every 
respect,  as  before,  while  the  law  of  New  York  would  now  gov- 
ern the  remedy,  and  only  the  remedy. 

(3)  The  other  circumstances  remaining  as  in  the  last  case,  let 
us  now  suppose  that  the  contract  by  its  terms  was  to  have  been 
performed  in  Massachusetts.  Another  element  is  thus  removed 
from  the  operation  of  the  English  law,  the  element  oi  perform- 
ance, and  has  been  given  a  situs  in  Massachusetts. 

(4)  If  we  now  go  a  step  further,  and  suppose  the  contract  to 
have  been  entered  into  in  Scotland,  yet  another  element  has  lost 
its  English  situs.  The  making  of  the  contract  now  has  its  situs 
in  Scotland.  The  only  element  retaining  its  English  situs 
is  the  consideration  of  the  contract. 


§  153     SITUS  OP   CONTRACT  —  CONFLICTING  VIEWS.      361 

Thus,  by  this  process  of  elimination,  we  have  before  us  a 
contract  made  in  Scotland,  in  consideration  of  an  act  done  in 
England  by  the  promisee,  the  contract  to  be  performed  in  Massa- 
chusetts, and  suit  brought  thereon  for  its  breach  in  New  York. 
Here  the  situs  of  the  making  of  the  contract  is  Scotland;  the 
situs  of  the  consideration  is  England;  the  situs  of  the  p&rformr 
ance  is  Massachusetts;  and  the  situs  of  the  remedy  is  New 
York.  The  only  one  of  these  which,  at  this  stage  of  the  dis- 
cussion, we  may  discard  as  having  no  bearing  upon  the  proper 
law  governing  the  contract,  is  the  law  of  New  York,  which  is 
only  the  situs  of  the  remedy. 

In  the  first  case  mentioned  the  English  courts  would  have  no 
difficulty  whatever  in  declaring  that  the  situs  of  the  contract 
was  England,  and  that  it  should  be  governed  by  English  law. 
Most  of  the  cases  that  arise  in  the  courts  are  of  this  character. 

In  the  second  case,  the  New  York  courts  would  have  scarcely 
less  difficulty  in  declaring  the  situs  of  the  contract  to  be  Eng- 
land, and  the  situs  of  the  remedy  to  be  New  York ;  and  that  every 
question  pertaining  to  the  substance  of  the  contract,  whether 
relating  to  the  making  of  the  contract,  its  performance,  or  its 
consideration,  should  be  governed  by  English  law,  while  every- 
thing pertaining  to  the  remedy  should  be  governed  by  New 
York  law.  As  long  as  the  three  essential  elements  that  go  to 
make  up  an  3xe«utory  contract,  the  making,  the  performancBj 
and  the  consideration,  all  have  the  same  situs,  there  is  no  diffi- 
culty in  ascribing  that  situs  to  the  contract  as  a  whole. 

But  as  soon  as  we  begin  to  dissociate  these  elements,  we  meet 
with  difficulties  that  are  insurmountable  if  we  continue  to  view 
the  situs  of  the  contract  as  single  and  indivisible.  For  example, 
if  we  take  the  third  case  above  mentioned,  and  suppose  the  New 
York  court  to  attempt  to  ascertain  the  situs  of  the  contract,  or 
the  locus  contractus  as  the  courts  are  fond  of  designating  it,  it  is 
evident  that  it  would  meet  with  grave  difficulties.  Indeed  it 
would  be  impossible  upon  any  logical  ground  to  fix  it  at  any 
one  spot.  Any  attempt  to  do  so  would  be  mere  guess-work,  a 
dictum  ex  cathedra.  And  still  more  would  this  be  so  in  the 
fourth  case  stated  above.  Shall  the  locus  contractus  be  Scot- 
land, where  the  parties  entered  into  the  contract  ?     Or  in  Eng' 


362      SITUS   OF   CONTRACT  —  CONFLICTING   VIEWS.      §  153 

land,  the  situs  of  the  consideration  ?  Or  in  Massachusetts,  the 
situs  of  the  performance  ?  Clearly,  it  is  not  in  New  York, 
which  is  merely  the  situs  of  the  remedy.  In  other  words,  if 
the  locus  contractus  is  single  and  indivisible,  is  this  to  be  con- 
sidered a  Scotch  contract,  an  English  contract,  or  a  Massa- 
chusetts contract  ? 

The  courts  have  piled  the  Ossa  of  confusion  upon  the  Pelion 
of  uncertainty  in  their  attempts  to  answer  these  questions,  in 
cases  where  the  situs  of  these  three  elements  of  a  contract  are 
not  identical. 

Many  of  the  courts  define  the  lex  loci  contractus  and  its 
effect  in  the  following  terms  (substantially):  "The  validity, 
the  nature,  the  interpretation,  and  the  obligation  of  contracts 
are  to  be  governed  by  the  lex  loci  contractus ;  that  is,  by  the 
law  of  the  place  where  the  contract  is  made,"  —  thus  holding 
the  situs  of  the  making  of  the  contract  to  be  the  locus  con- 
tractus, though  the  contract  is  to  be  performed  elsewhere.^ 

Other  courts,  with  equal  looseness  and  inaccuracy,  define  the 
"lex  loci  contractus"  substantially  as  "the  law  of  the  place 
where  the  contract  is  made,  if  to  be  performed  there ;  but  if  to 
be  performed  in  another  State,  then  the  law  of  the  latter  place," 
—  thus  making  the  situs  of  performance  the  locus  contractus, 
though  the  contract  is  entered  irito  elsewhere.* 

Still  other  courts  define  the   "lex  loci  contractus"  as   "the 

1  Lindsay  v.  Hill,  66  Me.  212,  22  Am.  Rep.  564,  566  ;  Milliken  v.  Pratt, 
125  Mass.  374,  28  Am.  Rep.  241 ;  Ivey  v.  LoUand,  42  Miss.  444,  2  Am.  Rep. 
606;  Commercial  Bank  i;.  Davidson,  18  Or.  57,  22  Pac.  517,  521  ;  Taylor  v. 
Sharp,  108  N.  C.  377,  13  8.  E.  138,  139  ;  Thomson-Houston  Electric  Co.  v. 
Palmer,  52  Minn.  174,  53  N.  W.  1137,  1138.  These  are  but  a  few  samples  of 
cases  using  language  of  this  character.  Some  of  them  are  cases  in  which 
the  situs  of  the  making  and  performance  are  identical,  but  reference  is  fre- 
quently not  made  to  the  fact  in  the  opinion.  If  this  is  not  intended  as  a  uni- 
Tei-sal  definition  of  the  "  lex  loci  contractus,"  the  use  of  such  general  terms  is 
objectionable,  because  of  the  tendency  to  confuse  and  mislead. 

2  Examples  of  decisions  thus  defining  the  locus  contractus  are  :  Pope  v. 
Nickerson,  3  Story,  465,  474  ;  Curtis  v.  R.  R.  Co.,  74  N..Y.  116, 120,  30  Am. 
Rep.  271  ;  The  Brantford  City,  29  Fed.  373,  386 ;  Dickinson  v.  Edwards,  77 
N.  Y.  573,  578,  33  Am.  Rep.  671  ;  Chapman  v.  Robertson,  6  Pai.  Ch.  627, 
630,  31  Am.  Dec.  264  ;  Lewis  v.  Headley,  36  111.  433,  87  Am.  Dec.  227.  See 
Scudder  v.  Bank,  91  U.  S.  406,  411. 


§  154  SITUS  OP  CONTRACT  —  TRUE   VIEW.  363 

law  with  reference  to  which  the  parties  contracted ;  '*  or  as 
"the  law  which  the  parties  had  in  mind  at  the  time  they  con- 
tracted;" or  as  "the  law  which  the  parties  intended  should 
govern  the  contract."* 

All  these  definitions  are  defective  for  the  reason  that  they 
attempt  to  define  the  locus  contractus  or  the  situs  of  a  contract, 
as  if  it  were  a  single  and  indivisible  unit,  to  be  determined  in 
every  case  by  the  application  of  a  single  general  rule. 

§  154.  True  View  —  Locus  Contractus  not  necessarily  a 
Single  Place,  but  may  consist  of  One  Place  for  One  Purpose, 
and  Another  Place  for  Another  Purpose.  —  The  truth  is  that 
a  contract  in  its  entirety  is  made  up  of  many  different  elements, 
each  of  which  may  be  the  subject  of  separate  judicial  investiga- 
tion. Some  of  these  maybe  express,  others  implied;  some  may 
depend  for  their  effect  solely  upon  the  intention  of  the  parties, 
while  the  effect  of  others  is  to  be  determined  by  law  and  policy, 
without  regard  to  the  parties'  intention. 

If  the  particular  element  in  dispute  is  one  which  is  dependent 
entirely  upon  the  parties'  intention,  the  law  which  the  parties 
have  in  mind  at  the  time  they  enter  into  the  contract  may  well 

•  This  is  a  favorite  definition  of  the  later  English  decisions  and  of  the  de- 
cisions of  the  United  States  Supreme  Court.  See  Peninsular,  etc.  Co.  v. 
Shand,  3  Moore,  P.  C.  N.  s.  272  ;  Lloyd  v.  Guibert,  L.  R.  1  Q.  B.  122,  123  ; 
Chartered  Bank  of  India  v.  Nav.  Co.,  9  Q.  B.  D.  118  ;  s.  c.  10  Q.  B.  D.  521, 
529,  536,  544  ;  Jacobs  v.  Credit  Lyonnais,  12  Q.  B.  D.  589 ;  Robinson  v. 
Bland,  2  Burr.  1077,  1078 ;  Liverpool  Steam  Co.  v.  Ins.  Co.,  129  U.  S.  397, 
448  ;  Coghlan  v.  R.  R.  Co.,  142  U.  S.  101,  109  ;  Hall  v.  Cordell,  142  U.  S.  116, 
120  ;  Bell  v.  Packard,  69  Me.  105,  31  Am.  Rep.  251,  253 ;  New  England 
Mortg.  Co.  V.  McLaughlin,  87  Ga.  1,  13  S.  E.  81,  82 ;  Dickinson  v.  Edwards, 
77  N.  Y.  573,  578,  33  Am.  Rep.  671 ;  Chapman  v.  Robertson,  6  Pai.  Ch. 
(N.  Y.)  627,  31  Am.  Dec.  264;  Thornton  v.  Dean,  19  S.  C.  583,  45  Am.  Rep. 
796,  800.  But  see  contra,  American  Mortg.  Co.  v.  Sewell,  92  Ala.  163,  9  So. 
143,  147.  In  the  last  case  the  court  says  :  "The  general  rule  is  that  the  va- 
lidity of  the  contract  is  determined  by  the  place  of  the  contract ;  the  intention 
of  the  parties  is  only  looked  to  in  construing  the  contract ;  or  as  forcibly  put  in 
the  brief  of  counsel,  '  the  venue  of  the  agreement  determines  its  validity,  and 
not  the  venue  of  the  intention.'"  This  statement,  it  is  believed,  is  much 
nearer  the  truth  than  the  statement  found  in  the  cases  above  cited.  See  Brauer 
r.  Compania,  57  Fed.  403,  411  ;  The  Glenmavis,  69  Fed.  472,  476 ;  post, 
§154. 


364  SITUS   OF   CONTRACT  —  TRUE   VIEW.  §  154 

be  a  potent  factor  in  ascertaining  that  intention.  In  such  cases 
the  last  definition  of  the  ''lex  loci  contractus"  mentioned  in 
the  preceding  section  will  be  applicable. 

But  in  many  instances  the  particular  element  in  dispute  will 
not  depend  altogether  upon  the  intent  of  the  parties,  but  in 
part  at  least  upon  rules  of  law  and  public  policy,  which  the 
intent  of  the  parties  will  not  be  permitted  to  overcome.  There 
are  many  cases  to  which  the  maxim  '^  Modus  et  conventio  legem 
vincunt "  is  not  applicable.  Instances  of  such  elements  are  not 
difficult  to  find  in  purely  domestic  contracts. 

Thus,  a  Virginia  married  woman  contracting  in  Virginia, 
whose  law  prohibits  her  to  make  the  particular  contract,  will 
not  be  held  liable  in  Virginia  upon  such  contract  merely  be- 
cause she  intended  to  enter  into  a  valid  contract.  So  an  oral 
contract  made  and  to  be  performed  in  a  State  whose  law  renders 
the  contract  void  if  not  in  writing  will  not  be  enforced  there 
merely  because  the  parties  intended  the  contract  to  be  good. 
Or  if  one  should  agree  to  do  something  prohibited  by  the  law 
of  the  State,  its  courts  will  not  enforce  the  contract  because  of 
the  good  intention  of  the  parties,  except  where  the  gist  of  the 
invalidity  is  the  intentional  disregard  of  the  law.  Or  if  one 
makes  a  contract,  the  consideration  of  which  is  condemned  by 
the  law  as  immoral  or  illegal,  the  parties'  intention  to  bind 
themselves  is  immaterial. 

These  principles  are  axiomatic,  and  apply  to  all  contracts 
which  the  law  declares  to  be  contrary  to  public  policy  and  void, 
whether  the  invalidity  arises,  as  in  the  above  examples,  in 
respect  to  the  capacity  of  the  parties,  the  formal  validity  of 
the  contract,  the  performance  of  the  contract,  or  its  considera- 
tion. The  proposition  would  never  for  one  moment  be  enter- 
tained in  any  of  these  cases  of  a  domestic  contract,  that  the 
intention  of  the  parties  may  validate  a  contract  declared  by  the 
law  to  be  contrary  to  public  policy  and  void. 

It  seems  manifest  that  the  same  principles  should  govern  con- 
tracts possessing  a  foreign  element.  If  the  contract  is  declared 
void  in  some  particular  element  (such  as  the  mode  of  entering 
into  it,  the  act  to  be  done  in  performance  of  it,  or  the  act  done 
as  a  consideration  for  the  promise)  by  the  law  properly  govern* 


§  164  SITUS   OF  CONTRACT  —  TBUE  VIEW.  365 

ing  that  element,  comity  and  justice  unite  in  demanding  that 
the  courts  of  every  State  should  uphold  the  law  and  policy  of 
the  State  where  the  particular  element  in  question  arises  or  has 
its  situs.  The  fact  that  the  parties  had  in  view  a  different  law 
as  governing  the  element  in  question  should  have  no  more  in- 
fluence in  this  case  than  in  the  case  of  the  purely  domestic 
contracts  above  considered.^ 

Thus,  let  us  suppose  a  man  to  enter  into  a  contract  in  Vir- 
ginia to  do  an  act  in  Virginia  prohibited  by  its  laws.  Of  course 
the  fact  that  he  intended  his  performance  of  the  contract  to  be 
governed  by  the  law  of  another  State  would  not  influence  the 
Virginia  courts  to  permit  him  to  perform  the  prohibited  act  in 
Virginia,  nor  to  validate  the  contract  otherwise  void.  It  is 
the  act  to  be  performed  in  Virginia  which  the  law  of  Virginia 
prohibits,  the  invalidity  of  which  avoids  the  contract.  If  the 
performance  is  still  to  take  place  in  Virginia,  can  it  be  supposed 
that  the  Virginia  courts  would  less  rigorously  condemn  the  per- 
formance of  the  contract  on  Virginia  soil  because  the  agreement 
was  entered  into  in  another  State,  and  the  parties  had  in  mind 
the  law  of  the  latter  State  or  of  no  State  at  all  ?  So  far  as  the 
Virginia  policy  is  concerned,  the  contract  is  as  contrary  thereto 
when  entered  into  in  another  State  as  when  entered  into  in  Vir- 
ginia. The  policy  is  directed  against  the  perfoirmance,  and  that 
is  to  take  place  in  Virginia  in  either  event.  The  Virginia  law 
therefore  would  surely  govern  the  Virginia  courts. 

This  being  the  reasonable  and  necessary  conclusion  of  the 
Virginia  courts,  does  not  comity  as  surely  demand,  if  the  above 
contract  should  come  to  be  enforced  in  the  courts  of  another 
State,  that  those  courts  should  respect  the  policy  of  Virginia 
and  should  not  enforce  a  contract  the  purpose  of  which  is  the 
performance  of  an  act  in  Virginia  prohibited  by  the  laws  and 
policy  of  Virginia,  no  matter  where  the  contract  is  entered  into, 
nor  what  law  the  parties  ''had  in  mind,"  if  any  ? 

And  what  is  true  of  the  element  of  performance  is  true  of  the 
making  of  the  contract  also,  and  of  the  consideration  to  support 
it,  as  will  appear  hereafter. 

1  See  The  Brantford  City,  29  Fed.  373,  395  ;  The  Hugo,  57  Fed.  403  ;  Bot- 
any  Worsted  Mills  v.  Knott,  76  Fed.  582.  But  see  Brown  v.  Finance  Co.,  31 
Fed.  516,  520. 


366  SITUS   OF   CONTRACT  —  TRUE   VIEW.  §  154 

From  what  has  been  said  it  will  be  seen  that,  so  far  as  the 
validity  of  the  contract  is  concerned,  the  third  definition  of  the 
"lex  loci  contractus"  given  in  the  preceding  section  is  erro- 
neous and  misleading.^ 

If  the  question  is  not  one  of  the  validity  of  the  contract,  but 
merely  relates  to  the  interpretation  to  be  given  its  terms,  as,  in 
ascertaining  the  nature  of  the  contract,  or  what  the  promisor  has 
obligated  himself  to  do  (obligation  of  the  contract),  since  these 
matters  generally  depend  primarily  upon  the  intention  of  the  par- 
ties at  the  time  of  the  contract  (the  law  being  invoked,  in  such 
caseg,  if  at  all,  only  where  the  parties  have  not  manifested  their 
intention  fully),  if  the  parties  have  not  fully  expressed  their 
meaning,  the  law  the  parties  actually  or  presumably  had  in  mind 
when  they  contracted  is  the  proper  law  to  look  to  in  order  to 
ascertain  that  intention,  and  this  is  as  true  of  domestic  as  of 
foreign  contracts.  Indeed,  it  may  be  laid  down  as  a  general 
proposition  that  wherever  the  maxim  ''modus  et  conventio 
legem  vincunt  "  is  applicable  to  the  particular  element  of  a 
contract  under  investigation,  the  proper  law  is  ''the  law  in  the 
minds  of  the  parties  "  at  the  time  of  the  contract,  whether  that 
law  is  the  law  of  the  place  where  the  contract  is  made,  or  the 
law  of  the  place  of  performance,  or  the  lex  fori,  or  the  law  of 
some  other  State. 

In  such  cases,  however,  it  is  manifest  that  unless  there  is 
evidence  that  the  law  of  some  other  State  is  in  the  minds  of 
the  parties,  the  general  presumption  will  be  that  the  parties 
contracted  with  reference  either  to  the  law  of  the  place  where 
the  contract  is  made  or  to  that  of  the  place  of  performance, 
these  being  the  places  where  the  acts  of  the  parties  in  con- 
nection with  the  contract  have  been,  or  are  to  be,  done. 

In  point  of  fact,  the  parties  to  a  contract  will  usually  have 
no  special  law  in  view,  or  at  least  will  make  no  mention  of  any, 

2  It  may  be  observed  however,  even  in  respect  to  the  validity  of  a  contract 
that  cases  may  arise  in  which  the  gist  of  the  illegality  of  a  particular  act  may 
be  the  inteviion  with  which  it  is  done.  An  act  may  sometimes  be  illegal,  if 
the  ijUent  be  to  violate  the  law,  which  will  be  regarded  as  legal  and  valid  if 
the  intention  is  innocent.  In  such  cases,  the  law  which  the  parties  "  have  in 
mind  "  may  be  of  importance. 


§  155  SITUS  OF  ELEMENTS   OF   CONTRACT.  367 

and  hence  no  direct  evidence  will  be  forthcoming  of  any  par- 
ticular law  intended  by  the  parties  to  govern  the  case.  The 
courts  therefore  must  resort  to  presumptions.  Naturally,  the 
law  which  parties  are  to  be  presumed  to  have  in  mind  when 
they  do  an  act  is  the  law  of  the  situs  of  the  act  in  question. 

The  final  result  of  the  reasoning  advanced  above  is  that,  in 
general  at  least,  whether  the  question  concerns  an  element  of 
the  contract  dependent  upon  the  parties'  intention  or  one  that 
is  independent  of  their  intention,  the  *'  proper  law"  to  regulate 
it  is  the  law  of  the  situs  of  the  particular  element,  circum- 
stance, or  act  in  dispute. 

These  conclusions  will  be  amply  vindicated  and  exemplified 
in  the  following  discussion. 

§  155.  Three  Leading  Elements  in  every  Contract  —  Eaob 
may  have  a  Separate  Situs.  —  There  are  three  leading  ele- 
ments or  acts  or  circumstances  in  connection  with  every  execu- 
tory contract,  all  other  elements  or  incidents  being  mere 
resultants  of  these  combined  or  of  one  or  the  other  of  them. 
Indeed,  without  them,  there  could  no  more  be  a  contract  than 
there  can  be  a  material  substance  without  beginning  and  with- 
out end. 

The  essential  elements  or  circumstances,  around  which  all 
the  incidents  of  contracts  revolve,  are  (1)  The  Making  of  the 
contract;  (2)  The  Consideration  supporting  the  contract  ;  and 
(3)  The  Performance  of  the  contract. 

Each  of  these  may  have  a  different  situs,  or  two  of  them  may 
have  a  situs  different  from  the  third,  or  all  three  of  them  may 
have  the  same  situs.^  All  the  incidents  or  qualities  of  the  con- 
tract (apart  from  those  dependent  solely  upon  its  expressed 
terms)  relate  to  or  flow  from  one  or  the  other  of  these  three 
elements,  and  will  depend  upon  the  effect  to  be  given  by  its 
proper  law,  the  law  of  its  situs,  to  the  leading  element  upon 
which  it  depends. 

Hence  it  comes  about  that,  in  every  inquiry  relating  to  any 
incident  or  quality  of  a  contract,  the  first  step  is  to  ascertain 
whether  the  particular  incident  relates  to  or  is  dependent  upon 
or  results  from  the  making  of  the  contract,  or  from  its  consider- 

1  Ante,  §  153. 


SITUS   OF  ELEMENTS   OF  CONTRAO*.  §  165 

ation,  or  from  its  performance.  When  this  is  ascertained,  the 
law  of  the  situs  of  the  making  or  of  the  consideration  or  of 
the  performance,  as  the  case  may  be,  will  regulate  the  par- 
ticular incident. 

More  generally  the  rule  may  be  thus  stated:  Everything 
relating  to  the  making  of  the  contract  is  to  be  governed  by  the 
law  of  the  place  where  it  is  made ;  everything  relating  to  the 
performance  of  the  contract  is  to  be  controlled  by  the  law  of 
the  place  of  performance  ;  and  wherever  the  legality  or  the 
sufficiency  of  the  consideration  is  the  subject  of  the  inquiry, 
the  law  of  the  situs  of  the  consideration  is  to  govern.' 

Sufficient  has  been  said  to  show  that  each  of  the  definitions 
of  the  *' lex  loci  contractus, "  mentioned  in  a  previous  section, 
is  incomplete  and  imperfect.  The  fault  of  each  is  that  it  as- 
sumes the  **  locus  contractus  "  or  situs  of  the  contract  to  be 
always  one  definite  fixed  locality  for  all  purposes,  regardless  of 
the  nature  of  the  particular  inquiry.  It  is  true  that  for  some 
purposes,  in  investigatiug  certain  incidents  or  qualities  of  the 
contract,  we  must  look  to  the  law  of  the  place  where  the  corw 
tract  is  made ;  for  others,  we  must  look  to  the  law  of  the  place 
where  the  contract  is  to  be  performed ;  and  for  others,  we  must 
look  to  the  law  "  in  the  minds  of  the  parties."  It  cannot  be 
said  that  the  law  of  one  of  these  places  more  than  another  is  the 
"lex  loci  contractus."  What  is  the  "proper  law"  for  one  pur- 
pose connected  with  the  contract  may  not  be  the  "proper  law" 
for  another  purpose.  This  has  been  recognized  in  a  New  York 
case,*  where  the  court  said:  "The  law  of  the  place  of  contract 
is  not  necessarily  one  place.     It  is  the  law  of  all  the  places  to 

2  See  Scudder  v.  Bank,  91  U.  S.  406,  412,  413  ;  Akera  v.  Demond,  103  Mass. 
318,  324.  This  general  rule  is  subject  to  the  qualification  mentioned  in  the 
preceding  section,  that  is,  if  the  particular  incident  is  one  to  which  the  maxim 
*' modus  et  conventio  legem  vincurU'^  is  applicable,  and  the  parties  clearly  con- 
tract with  reference  to  the  law  of  a  particular  State,  that  law  will  govern  as 
carrying  out  the  "  conventio  "  of  the  parties.  It  will  rarely  happen  however 
that  the  parties  can  be  shown  by  direct  evidence  to  have  had  any  particular 
law  in  mind,  in  which  latter  event  the  general  rule  mentioned  above  in  the 
text  will  furnish  the  law  which  they  presuiruibly  had  reference  to. 

»  Hibernia  Nat.  Bank  v.  Lacombe,  84  N.  Y.  367,  378.  See  also  Seamana 
r.  Knapp,  89  Wis.  171,  27  L.  R.  A.  362,  365. 


§  156      INCIDENTS  OR   QUALITIES   OP   CONTRACTS.  369 

which  and  for  the  purposes  for  which  it  has  reference.  A  bill 
of  exchange  therefore  is  to  be  construed  according  to  the  law  of 
each  place  at  which  the  contract  contemplated  that  something 
is  to  be  done  by  either  of  the  parties." 

Considering  therefore  the  double  or  triple  meaning  that  may 
be  attached  to  the  phrase  "  lex  loci  contractus  "  in  connection 
with  executory  contracts,  and  the  inextricable  confusion  into 
which  it  is  apt  to  lead  us,  the  wiser  and  safer  course  will  be  to 
discard  the  term  altogether  in  the  discussion  of  contracts  execu- 
tory. The  locus  contractus  should  be  analyzed  into  its  con- 
stituent parts,  as  we  have  done  already,  and  to  each  of  these 
parts  a  distinct  name  should  be  given.  In  the  future  discussion 
we  will  designate  the  place  where  the  contract  is  entered  iiito  as 
the  "  locus  celebrationis,"  and  the  law  of  that  place  as  the  *'  lex 
loci  celebrationis  "  or  the  '*  lex  celebrationis.^^  The  place  where 
the  contract  is  to  be  performed  will  be  known  as  the  "  Iocils 
solutionis,"  and  its  law  as  the  "  lex  loci  solutionis  "  or  the  *'  lex 
solutionis.'^  The  situs  of  the  consideration  may  be  designated 
the  " locus  considerationis,"  and  its  law  the  ''lex  loci  conside- 
rationis." 

§  156.  The  Various  Incidents  or  Qualities  of  Contracts.  — 
Upon  a  careful  analysis,  it  will  be  found  that  every  inquiry  re- 
lating to  an  executory  contract  must  be  directed  towards  one  or 
the  other  of  the  following  circumstances  or  qualities  :  (1)  The 
validity  of  the  contract ;  (2)  Its  obligation  or  effect ;  (3)  Its 
interpretation  ;  or  (4)  Its  discharge.^ 

Some  of  these  incidents  or  qualities  relate  to  or  spring  from 
the  making  of  the  contract,  others  relate  to  or  spring  from  its 
performance,  and  others  are  connected  with  the  consideration. 
Some  depend  upon  the  intention  of  the  parties,  express  or  im- 
plied; others  are  fixed  by  the  law  and  are  independent  of  the 
intention.  The  proper  law  governing  each  of  these  incidents 
will  be  fully  discussed  hereafter. 

1  To  these  may  be  added,  (5)  The  remedies  for  its  breach.  But  since  all 
questions  pertaining  to  the  remedy  are  governed  by  the  law  of  the  situs  of  the 
remedy  (lex  fori),  this  incident  may  be  omitted  from  a  discussion  of  the  "  lex 
loci  contractus."  It  will  be  considered  hereafter  in  connection  with  the  Situs 
of  the  Remedy.     Post,  §§  205  et  seq. 

24 


370  INCIDENTS   OR   QUALITIES   OP   CONTRACTS.      §  156 

To  illustrate  the  dependence  of  these  incidents  upon  the  mak- 
ing, performance,  or  consideration  of  the  contract,  let  us  examine 
a  little  more  closely  the  first  one  above  mentioned,  namely,  the 
validity  of  the  contract. 

We  will  suppose  A  and  B  to  enter  into  a  contract  in  Virginia 
(locus  celebrationis),  by  which  A  agrees  to  do  a  particular  act 
for  B  in  New  York  (locus  solutionis)  in  consideration  of  an  act 
done  or  to  be  done  by  B  for  A  in  Massachusetts  (locus  conside- 
rationis).  Assuming  the  capacity  of  the  parties  to  contract,  the 
validity  of  this  contract  might  be  questioned  in  four  distinct 
ways  :  (1)  By  alleging  that  the  making  of  the  contract  was  pro- 
hibited by  law;  for  example,  that  it  was  entered  into  on  Sunday; 

(2)  By  alleging  that  it  was  not  entered  into  with  such  formali- 
ties as  the  law  peremptorily  required;  for  example,  in  case  of 
some  contracts,  that  it  was  not  in  writing  and  was  therefore  void;  ' 

(3)  By  alleging  that  the  act  to  be  done  by  A  in  New  York  in 
performance  of  the  contract  was  contrary  to  law;  or  (4)  By 
alleging  that  the  act  done  or  to  be  done  in  Massachusetts  (the 
consideration  for  A's  promise)  was  contrary  to  law. 

It  will  be  seen  that  the  first  two  objections  to  the  validity  of 
the  contract  relate  to  the  making  of  the  contract ;  the  third  to 
its  performance  ;  and  the  fourth  to  the  consideration.  We  must 
therefore  look  to  Virginia  (locus  celebrationis)  to  furnish  the 
law  governing  the  first  two  points  of  attack  ;  to  New  York  (locus 
solutionis)  to  furnish  the  law  governing  the  third  question  ; 
and  to  Massachusetts  (locus  considerationis)  to  furnish  the  law 
governing  the  fourth  ground  of  objection  to  the  validity  of  the 
contract. 

Before  considering  more  fully  the  various  incidents  of  con- 
tracts set  forth  at  the  beginning  of  this  section,  and  the  law 
properly  governing  each  of  them,  it  is  expedient  and  necessary 
to  examine  more  particularly  the  situs  of  the  contract  in  its  vari- 
ous aspects,  as  represented  by  the  locus  celebrationis,  the  locus 
solutionis,  and  the  locus  considerationis.  To  this  inquiry  the 
next  chapter  will  be  devoted. 

»  See  Wolf  V.  Burke,  18  Colo.  264,  32  Pac.  427  ;  Hunt  v.  Jones,  12  R.  I. 
a«6,  34  Am.  Rep.  635. 


§  157  LOCUS  CELBBKATIONIS  —  FINAL  ACT.  371 


CHAPTER  XVI. 

LOCUS  CELEBRATIONIS;   LOCUS   SOLUTIONIS;   AND  LOCUS 
CONSmERATIONIS. 

§  157.  Locus  Celebrationis  —  Place  where  Contract  be- 
comes finally  Binding.  —  In  most  cases,  the  locus  celebrationis 
of  an  executory  contract  is  perfectly  plain.  There  is  nothing  to 
complicate  the  situation  when  the  parties  meet  together  in  a 
given  State,  and  then  and  there  enter  into  a  binding  agreement. 
The  place  where  the  binding  contract  is  thus  entered  into  will 
be  the  locus  celebrationis. 

But  frequently  cases  arise  in  which  overtures  are  made  or  the 
preliminaries  are  discussed  in  one  State,  while  the  contract  be- 
comes finally  binding  only  after  some  other  act  is  done  elsewhere; 
or  cases  may  arise  where  the  parties  to  the  contract  are  widely 
separated  from  each  other,  the  contract  being  entered  into  by 
correspondence  or  telegram,  or  through  an  agent.  In  cases  of 
this  sort  more  difficulty  is  experienced  in  ascertaining  the  locus 
celebrationis  of  the  contract. 

It  may  be  laid  down  as  a  general  proposition  that  a  contract 
is  not  "made  "  until  it  becomes  complete  and  binding  upon  the 
promisor.  As  soon  as  the  final  act  is  done,  and  the  minds  of  the 
parties  meet,  the  promisor  becomes  irretrievably  bound,  and 
the  contract  is  inade.  The  situs  of  that  final  act  necessary  to 
bind  the  promisor  is  the  locus  celebrationis  of  the  contract.^ 

1  Milliken  v.  Pratt,  125  Mass.  374,  28  Am.  Rep.  241  ;  Hill  v.  Chase,  143 
Mass.  129,  9  N.  E.  30  ;  Shoe  &  Leather  Bank  v.  Wood,  142  Mass.  563,  567, 
8  N.  E.  753  ;  Bell  v.  Packard,  69  Me.  105,  31  Am.  Rep.  251,  252  ;  Western 
Transportation  Co.  v.  Kilderhouse,  87  N.  Y.  430,  438 ;  Wayne  Co.  Bank  v. 
Low,  81  N.  Y.  566,  572,  37  Am.  Rep.  533 ;  Wood  v.  Ins.  Co.,  8  Wash.  427, 
36  Pac.  267  ;  Barrett  v.  Dodge,  16  R.  I.  740,  19  Atl.  530 ;  Keiwert  v.  Meyer, 
62  Ind.  587,  30  Am.  Rep.  206,  208 ;  Hart  v.  Wills,  52  la.  56,  2  N.  W.  619, 
«21 ;  Voorheis  v.  Society,  91  Mich.  469,  51  N.  W.  1109  ;  State  Mut.  Ins.  Co, 
V.  Brinkley  Co.,  61  Ark.  1,  29  L.  R.  A.  712  ;  Mut.  Ben.  Ins.  Co.  v.  Robison, 


372  LOCUS   CELEBRATIONIS  —  PINAL  ACT.  §  157 

In  Waldron  v.  Ritchings,^  the  plaintiff,  who  was  at  the  time 
in  New  York,  agreed  with  the  defendant,  the  manager  of  an 
opera  in  Philadelphia,  to  go  there  and  make  her  dehut.  She 
was  assured,  if  she  did  not  fail  in  the  estimation  of  the  public 
and  the  press,  of  an  engagement  upon  terms  specified  in  the 
negotiation  between  the  parties.  It  was  held  that  the  contract 
was  not  made  in  New  York,  but  in  Philadelphia,  upon  the  ful- 
filling the  test  of  success. 

Notes,  deeds,  and  other  contracts  of  that  character  do  not  be- 
come completed  and  binding  contracts  merely  by  the  fact  of  the 
promisor's  signing  them.  They  must  also  be  delivered.  Hence, 
if  the  signing  occurs  in  one  State,  while  the  delivery  takes  place 
in  another,  the  latter  State,  not  the  former,  is  the  locus  celebra- 
tionis.' Thus,  where  a  bond  for  the  purchase  price  of  land  in 
Delaware  was  signed  and  sealed  in  Pennsylvania  by  a  mar- 
ried woman,  but  was  delivered  to  the  payee  in  Delaware,  the 
locus  celebrationis  of  the  bond  was  held  to  be  Delaware,  not 
Pennsylvania.* 

So,  the  place  where  an  offer  is  accepted  (until  which  accept- 
ance it  is  not  binding)  is  the  locus  celebrationis  of  the  contract, 
being  the  place  where  the  minds  of  the  parties  meet.*    Hence,  if 

54  Fed.  580  ;  Knights,  etc.  Indemnity  Co.  v.  Berry,  1  C.  C.  A.  561,  50  Fed. 
511,  513  ;  Hicks  v.  Ins.  Co.,  9  C,  C.  A.  215,  60  Fed.  690,  692  ;  Tilden  v. 
Blair,  21  Wall.  241,  246.  But  see  Beverwyck  Brewing  Co.  v.  Oliver,  69  Vt. 
323,  37  Atl.  1110. 

«  9  Abb.  Pr.  N.  s.  (N.  Y.)  359  ;  s.  c.  3  Daly,  388. 

«  Freeman's  Appeal,  68  Conn.  533,  37  Atl.  420  ;  Akers  v.  Demond,  103 
Mass,  318,  324 ;  Hubbell  v.  Land  Co.,  95  Tenn.  585,  32  S.  W.  965  ;  Watson 
r.  Lane,  52  N.  J.  L.  550,  20  Atl.  894,  895  ;  Sheldon  v.  Haxtun,  91  N.  Y.  124  ; 
Cook  V.  Litchfield,  9  N.  Y.  279  ;  Buchanan  v.  Bank,  5  C.  C.  A,  83,  55  Fed. 
223.     See  Suit  v.  Woodhall,  113  Mass.  391,  394. 

*  Baum  V.  Birchall,  150  Penn.  St.  164,  24  Atl.  620.  See  also  Phipps  v. 
Harding,  17  C.  C.  A.  203,  70  Fed.  468,  471 ;  Carnegie  Steel  Co.  v.  Construction 
Co.  (Tenn, ),  38  S.  W.  102  ;  Bell  r.  Packard,  69  Me.  105,  31  Am.  Rep.  251, 
252  ;  Lawrence  v.  Bassett,  5  Allen  (Mass.),  140. 

6  Armstrong  v.  Best,  112  N.  C.  59,  17  S.  E.  14  ;  Hydew.  Goodnow,  3  N.  Y. 
266,  270 ;  Vassar  v.  Camp,  11  N.  Y.  441  ;  Trevor  v.  Wood,  36  N.  Y,  309 ; 
Suit  V.  Woodhall,  113  Mass.  391,  394  ;  Whiston  v.  Stodder,  8  Mart.  (La.)  95, 
13  Am.  Dec.  281 ;  Dord  v.  BonafiFee,  6  La.  Ann.  563,  54  Am,  Dec,  573  ; 
Claflin  V.  Meyer,  4i  La.  Ann.  1048,  7  So,  139. 


§  157  LOCUS   CELEBRATIONIS  —  FINAL   ACT.  373 

a  person  in  one  State  sends  to  a  person  in  another  a  letter  or 
telegram,  containing  an  offer  or  proposal,  which  the  latter  there 
accepts  by  letter  or  telegram,  the  contract  is  complete  when  the 
letter  of  assent  is  deposited  in  the  post  ofl&ce,  properly  addressed, 
or  when  the  reply  message  is  delivered  to  the  telegraph  company 
for  transmission.  The  locus  celebrationis  is  thus  definitely  fixed 
at  the  place  where  the  letter  of  acceptance  is  mailed  or  the  mes- 
sage delivered  for  transmission,  and  not  the  place  where  it  is 
received  or  addressed,  or  where  the  offer  was  first  made." 

By  parity  of  reason,  the  question  whether  goods  shipped  in 
one  State  upon  an  order  from  another  constitutes  a  sale  in  the 
former  State  depends  upon  the  further  question  whether  the 
parties  have  done  every  act  necessary  to  make  a  binding  sale 
before  the  goods  leave  the  former  State.  Thus  if  the  consignor 
there  delivers  the  goods  to  a  carrier  as  the  agent  of  the  con- 
signee, the  sale  is  complete  there;  if  the  carrier  is  the  agent 
of  the  consignor,  the  sale  only  becomes  complete  upon  the  de- 
livery by  the  carrier  to  the  consignee  or  his  agent,  and  the  place 
where  that  occurs  is  the  locus  celebrationis.''^  So  also,  if  the 
goods  are  sent  C.  0.  D.,  the  locus  celebrationis  of  the  contract 
of  sale  is  the  place  where  the  assignee  accepts  them.* 

Upon  the  same  reasoning,  it  would  seem  clear  that  a  contract, 
intended  to  create  a  joint  obligation,  made  by  one  promisor  in 
one  State,  and  by  him  sent  to  another  promisor  in  another  State 
to  be  signed  by  him  there,  should  be  regarded  as  made  in  the 
latter  State,  for  only  upon  the  signing  of  the  contract  by  the 
second  promisor  does  the  contract  become  binding  upon  either.' 

•  Milliken  v.  Pratt,  125  Mass.  374,  28  Am.  Rep.  241  ;  Vassar  v.  Camp,  11 
N.  Y.  441  ;  "Wayne  Co.  Bank  v.  Low,  81  N.  Y.  566,  572  ;  Sheldon  v.  Haxtun, 
91  N.  Y.  124,  131  ;  Bell  v.  Packard,  69  Me.  105,  31  Am.  Rep.  251,  252 ; 
Baum  V.  Birchall.  150  Penn.  St.  164,  24  Atl.  620;  Perry  v.  Iron  Co.,  15  R.  L 
380,  5  Atl.  632  ;  Atlantic  Phosphate  Co.  v.  Ely,  82  Ga.  438,  9  S.  E.  170 ;  Gar- 
rettson  v.  Bankj  47  Fed.  867,  869  ;  Kellogg  v.  Miller,  13  Fed.  198,  200. 

T  Webber  v.  Howe,  36  Mich.  150,  24  Am.  Rep.  590 ;  Dolan  v.  Green,  110 
Mass.  322.     See  ante,  §  128. 

«  State  V.  O'Neil,  58  Vt.  140,  56  Am.  Rep.  557.  But  see  State  v.  Carl,  43 
Ark.  353,  51  Am.  Rep.  565. 

9  In  Bryant  v.  Edson,  8  Vt.  325,  30  Am.  Dec.  472,  it  was  said,  under  cir- 
'cumstances  of  this  kind,  that  the  locus  celebrationis  of  the  contract  is  tht 


374    LOCUS  CELEBRATIONIS  —  AGENTS'  CONTRACTS.    §  158 

On  the  other  hand,  if  the  contract  is  not  joint,  but  several,  or 
joint  and  several,  the  locus  celebrationis  of  the  contract  is  sever- 
able, each  party's  contract  having  its  locus  celebrationis  at  the 
place  where  it  is  entered  into.^** 

§  158.  Same  —  Contracts  of  Agents.  —  Questions  also  fre- 
quently arise  as  to  the  locus  celebrationis  of  contracts  made  by 
agents.  It  is  to  be  noted,  in  the  first  place,  that  an  implied 
authority  of  an  agent  to  enter  into  a  contract  binding  upon  his 
principal  depends  upon  the  law  of  the  place  where  the  general 
authority  is  given  or  the  agency  is  created,  not  that  of  the  place 
where  the  alleged  contract  is  entered  into.^  In  Pope  v.  Nicker- 
son,*  the  question  arose  as  to  the  authority  of  the  master  of  a 
ship  to  bind  the  owner  by  certain  bottomry  bonds  valid  by  the 
law  of  the  port,  but  not  by  the  law  of  the  principal's  country. 
The  court  held  that  the  law  of  the  latter  State  must  govern  the 
extent  of  the  agent's  authority.  In  the  course  of  his  opinion. 
Judge  Story  said:  ''Any  other  rule  would  subject  the  principal 
to  the  most  alarming  responsibility,  and  be  inconsistent  with 
that  just  comity  and  public  convenience,  which  lies  at  the 
foundation  of  private  international  law.  .  .  .  The  authority 
confided  by  the  principal  is  in  all  such  cases  measured,  as  to 
the  interpretation  and  extent  of  that  authority,  by  or  according 
to  the  law  of  the  place  where  it  is  given  —  by  the  lex  loci  — 
and  not  by  the  laws  of  a  foreign  country,  of  which  the  principal 
is  or  may  be  wholly  ignorant,  and  by  whose  regulations  he  is 
not  bound." 

But  if  a  person  acts  as  an  agent  in  one  State  for  a  person  in 
another,  which  act  is  unauthorized,  but  is  afterwards  ratified,  or 
the  principal  becomes  otherwise  estopped  to  deny  the  agent's 

State  where  the  contract  is  first  signed.  But  in  that  case  the  real  inquiry 
was  not  as  to  the  locus  celebrationis,  but  as  to  the  locus  solutionis,  which  is 
always  a  question  of  the  partus'  intention.    See  post,  §  159. 

w  Glenny  Glass  Co.  v.  Taylor,  99  Ky.  24,  34  S.  W.  711.  See  Pugh  v.  Cam- 
eron, 11  W.  Va.  523,  532  ;  Findley  v.  Hall,  12  Ohio,  610. 

1  Pope  V.  Nickerson,  3  Story,  465,  476  ;  Freeman's  Appeal,  68  Conn.  533> 
37  Atl.  420,  421.     See  Arayo  v.  Currell,  1  La.  528,  20  Am.  Dec.  286,  note. 
And  so  it  is  also  with  an  express  authority,  where  the  question  is  as  to  tbc 
principal's  capacity  to  give  the  authority.     Freeman's  Appeal,  supra. 
»  3  Story,  465,  476. 


§  158    LOCUS  CELEBRATIONIS  —  AGENTS'  CONTRACTS.    376 

authority,  it  would  seem  that  the  scope  of  the  authority  in  such 
case  should  depend  upon  the  law  of  the  State  where  the  agent's 
act  is  done.  Thus,  in  McMaster  v.  Ins.  Co.,'  a  statute  of  Iowa 
provided  that  "any  person  who  shall  hereafter  solicit  insurance 
.  .  .  shall  he  held  to  be  the  soliciting  agent  of  the  insurance 
company,  anything  in  the  application  or  policy  to  the  contrary 
notwithstanding."  It  was  held  that  a  foreign  insurance  com- 
pany should  be  bound  by  the  acts  in  Iowa  of  the  person  **  so- 
liciting "  the  insurance,  though  it  was  expressly  stipulated  in 
the  policy  that  the  party  who  brought  the  insurer  and  insured 
together  was  the  agent  of  the  insured,  and  that  the  company 
should  not  be  held  responsible  for  his  acts  or  declarations. 

In  Brooke  v.  R.  R.  Co.,*  a  shipping  clerk  of  a  railroad  com- 
pany, in  collusion  with  a  consignor,  issued  in  New  York  a  ficti- 
tious bill  of  lading,  with  the  consignor's  draft  upon  the  consignee 
attached,  without  the  actual  receipt  of  the  goods  therein  speci- 
fied. The  consignee  lived  in  Philadelphia.  He  paid  the  draft 
and  then  sued  the  railroad  company  because  of  the  fraudulent 
act  of  its  agent.  It  was  held  by  the  Pennsylvania  court  that 
the  liability  of  the  principal  for  the  agent's  act  was  to  be  deter- 
mined in  accordance  with  the  law  of  New  York,  the  place  where 
the  agent's  fraud  was  committed. 

The  same  principles  apply  also  with  respect  to  the  liability  of 
a  firm  for  the  acts  or  contracts  of  a  partner.  If  by  the  law 
under  which  the  partnership  is  created  the  liability  of  a  member 
of  the  firm  is  limited,  this  limited  liability  will  not  be  increased 
merely  because  the  act  or  contract  of  another  of  the  partners  or 
of  the  firm  itself  is  done  or  made  in  another  State,  under  whose 
laws  the  members  of  the  firm  would  be  liable  to  the  fullest 
extent. 

Thus,  in  King  v.  Sarria,^  the  defendant,  Sarria,  resided  in 
Cuba,  and  was  a  special  partner  of  a  firm  organized  and  doing 
business  there.  The  Spanish  law  (prevailing  in  Cuba)  touch- 
ing limited  partnerships  had  been  complied  with  so  as  to  limit 

3  78  Fed.  33,  37.  See  also  Mut.,  etc.  Ins.  Co.  v.  Robison,  54  Fed.  680  ; 
N.  Y.  Life  Ins.  Co.  v.  Russell,  23  C.  C.  A.  43,  77  Fed.  94. 

*  108  Penn.  St.  530,  1  Atl.  206,  208. 
■     «  69  N.  Y.  24,  25  Am.  Rep.  128.  See  Baldwin  v.  Gray,  4  Mart.  N.s.  192. 


376    LOCUS  CELEBRATIONIS  —  AGENTS'  CONTRACTS.    §  158 

his  liability  to  the  amount  of  capital  he  had  contributed.  The 
firm  became  indebted  to  the  plaintiffs,  citizens  of  New  York,  by 
transactions  in  New  York  with  which  Sarria  had  no  personal 
connection.  The  New  York  court  held  that  the  contract  of 
partnership  was  to  be  interpreted  and  regulated  by  the  laws 
of  Spain  ;  that  the  authority  of  the  acting  partner  and  Sarria's 
liability  were  to  be  determined  by  those  laws;  and  that  the 
defendant  was  entitled  to  set  up  his  limited  liability  as  a 
defence.' 

It  is  an  entirely  different  matter  when  the  question  does  not 
relate  to  the  agent's  authority  to  make  the  contract,  but  to  the 
contract  itself  when  made.  Here  the  maxim,  *'  qui  facit  per 
aliumfacitper  se,"  applies  with  full  force.  If  the  agent,  fully 
authorized,  makes  a  contract  in  a  foreign  State,  it  is  the  same 
as  if  the  principal  were  there  in  person,  and  had  himself  entered 
into  it.  As  was  said  in  Milliken  v.  Pratt  :  ^  '*  If  the  contract  is 
completed  in  another  State,  it  makes  no  difference  in  principle 
whether  the  citizen  of  this  State  goes  in  person  or  sends  an 
agent,  or  writes  a  letter,  across  the  boundary  line  between  the 
two  States.  As  was  laid  down  by  Lord  Lyndhurst  in  Pattison 
V.Mills,  1  Dow  &  C.  342,  363:  'If  I,  residing  in  England, 
send  down  my  agent  to  Scotland,  and  he  makes  contracts  for  me 
there,  it  is  the  same  as  if  I  myself  went  there  and  made  them.'  " 

In  determining  in  such  cases  the  principal's  liability  upon 
the  contract  made  by  the  agent,  the  locus  celebrationis  of  the 
contract  is  the  place  where  the  principal,  through  his  agent, 
enters  into  the  contract.* 

«  It  is  to  be  observed  in  this  case  that  the  law  of  New  York  (forum)  also 
authorized  limited  partnerships.  It  would  seem  however  that  this  is  imma- 
terial. But  where  the  question  is  not  of  an  intrinsic  restriction  upon  the 
liability  of  the  part;ners,  but  the  law  of  the  situs  of  the  partnership  merely 
provides  that  the  limited  partnership  shall  not  be  liable  upon  a  contract  unless 
certain  formalities  are  complied  with,  as  that  the  contract  shall  be  signed  by 
at  least  two  managers,  etc.,  it  becomes  then  a  question  of  the  formal  validity 
of  the  contract.  See  post,  §  172.  In  such  case  the  validity  of  the  contract 
will  be  governed  by  the  law  of  the  place  where  it  is  entered  into.  Park  v, 
Kelly  Axe  Co.,  1  C.  C.  A.  395,  49  Fed.  618,  627. 

T  125  Mass.  374,  375,  28  Am.  Rep.  241. 

«  Milliken  v.  Pratt,  125  Mass.  374,  375,  28  Am.  Rep.  241  ;  Carnegie  n 


§  169  LOCUS   SOLUTIONIS  —  NONE  NAMED.  377 

In  many  cases,  however,  the  agent  is  not  fully  authorized  to 
enter  at  once  into  a  complete  and  binding  contract,  but  must 
refer  the  negotiations  to  his  principal  for  approval,  before  finally 
closing  the  bargain;  it  is  understood  that  he  is  authorized  to 
make  the  contract,  subject  to  the  principal's  approval  or  ratifica- 
tion. In  such  cases  the  contract  does  not  become  binding  upon 
the  principal  until  the  approval  or  ratification  has  taken  place, 
and  hence  the  locus  celebrationis  is  the  place  where  such  ap- 
proval or  ratification  occurs.' 

But  if  the  other  party  to  the  contract  is  ignorant  that  the 
agent  has  not  plenary  authority  and  believes  that  he  is  entering 
into  a  binding  contract,  though  it  is  still  true  that  the  exist- 
ence of  the  contract  will  depend  upon  the  approval  or  subse- 
quent ratification  of  the  principal,  the  ratification  when  given 
relates  back  to  the  time  of  the  execution  of  the  contract,  and 
the  place  where  that  execution  occurs  is  the  locus  celebrationis.^" 

§  159.  Locus  Solutionis  —  Optional  -with  the  Parties  —  No 
Place  of  Performance  named.  —  In  the  case  of  executed  con- 
tracts (so  called  for  the  very  reason  that  they  are  performed  as 
soon  as  made),  the  place  of  performance  must  necessarily  coin- 
cide with  the  locus  celebrationis.^    But  in  the  case  of  contracts 

Morrison,  2  Met.  (Mass.)  381  ;  Baum  r.  Birchall,  150  Penn.  St.  164,  24  Atl. 
620  ;  Jackson  v.  Mortg.  Co.,  88  Ga.  756,  15  S.  E.  812,  813 ;  Merchants'  Bank 
V.  Griswold,  72  N.  Y.  472,  481,  28  Am.  Rep.  159 ;  Newman  v.  Cannon,  43 
La.  Ann.  712,  9  So.  439;  Arayo  v.  Currell,  1  La.  528,  20  Am.  Dec.  286; 
Hausman  v.  Nye,  62  Ind.  485,  30  Am.  Rep.  199,  200  ;  Webber  v.  Howe,  36 
Mich.  150,  24  Am.  Rep.  590 ;  Hicks  v.  Ins.  Co.,  9  C.  C.  A.  215,  60  Fed.  690. 
See  Suit  v.  Woodhall,  113  Mass.  391, 

9  Tegler  r.  Shipman,  33  la.  194,  11  Am.  Rep.  118 ;  Kling  v.  Fries,  33 
Mich.  275  ;  Keiwert  v.  Meyer,  62  Ind.  587,  30  Am.  Rep.  206,  209 ;  State, 
etc.  Ins.  Co.  v.  Brinkley  Co.,  61  Ark.  1,  29  L.  R.  A  712,  713  ;  Dord  v. 
BonafiFee,  6  La.  Ann.  563,  54  Am.  Dec.  573 ;  Claflin  v.  Meyer,  41  La.  Ann. 
1048,  7  So.  139  ;  Newman  v.  Cannon,  43  La.  Ann.  712,  9  So.  439  ;  Shuen- 
feldt  V.  Junkermann,  20  Fed.  357. 

M  Golson  V.  Ebert,  52  Mo.  260.  See  Findley  v.  Hall,  12  Ohio,  610  ;  Pugh 
V.  Cameron,  11  W.  Va.  523. 

1  Scudder  v.  Bank,  91  U.  S.  406,  413  ;  Bethell  v.  Bethell,  54  Ind.  428,  23 
Am.  Rep.  650,  654.  Hence,  as  we  have  seen,  the  "proper  law  "governing 
voluntary  transfers  of  personal  property  is  always  the  law  of  the  place  whpre 
the  transfer  is  made  (lex  loci  contractus).     Ante,  §§  127  et  seq. 


378  IX)CUS   SOLUTIONIS  —  NONE  NAMED.  §  159 

executory,  since  they  are  to  be  performed  infuturo,  opportu- 
nity is  given  the  parties  to  change  their  situs  before  the  time  of 
performance,  and  to  perform  it  elsewhere,  if  the  contract  so 
requires. 

The  locus  solutionis  of  a  contract  primarily  depends  upon  the 
intention  of  the  parties.  It  is  a  part  of  the  principle  of  freedom 
of  contract  to  choose  the  place  where  a  contract  shall  be  per- 
formed. This  choice  may  be  expressed  in  the  contract  itself; 
if  not,  it  may  be  inferred  from  the  surrounding  circumstances. 

If  no  place  of  performance  is  named  by  the  parties,  a  very 
strong  presumption  arises  that  the  parties  intend  that  it  shall  be 
performed  where  it  is  made.^  But  though  this  presumption  is 
strong,  it  is  not  conclusive,  and  may  be  rebutted  by  evidence, 
or  by  clear  inference  from  the  surrounding  circumstances,  that 
the  parties  intended  that  the  contract  should  be  performed  else- 
where.* Thus,  if  the  parties  are  only  transiently  in  the  place 
where  the  contract  is  entered  into,  with  no  intention  of  stop- 
ping there,  and  the  contract  is  to  be  performed  at  a  time  when, 
under  the  circumstances  of  the  case,  the  parties  did  not  contem- 
plate being  within  the  State,  this  would  be  sufficient  to  rebut 
the  presumption  that  the  contract  was  intended  to  be  per- 
formed where  made.* 

*  Pritchard  v.  Norton,  106  IT.  S.  124,  137  ;  Clark  v.  Seaiight,  135  Penn. 
St.  173,  19  Atl.  941 ;  Tenant  v.  Tenant,  110  Penn.  St.  478,  1  Atl.  532 ;  Bar- 
rett V.  Dodge,  16  R.  I.  740,  19  Atl.  530 ;  Bell  v.  Packard,  69  Me.  105,  31 
Am.  Rep.  251 ;  Lewis  r.  Headley,  36  111.  433,  87  Am.  Dec.  227  ;  Parsons  v. 
Trask,  7  Gray  (Mass.),  473,  66  Am.  Dec.  502  ;  Young  v.  Harris,  14  B,  Mon. 
(Ky.)  556,  61  Am.  Dec.  170 ;  Bryant  v.  Edson,  8  Vt.  325,  30  Am.  Dec.  472; 
Chapman  v.  Robertson,  6  Pai.  Ch.  (N.  Y.)  627,  31  Am.  Dec.  264 ;  Malpicaw. 
McKown,  1  La.  248,  20  Am.  Dec.  279  ;  Thompson  v.  Eetcham,  8  Johns. 
(N.  Y.)  189,  5  Am.  Dec.  332. 

8  Pritchard  v.  Norton,  106  U.  S.  124,  137. 

4  Dan.  Neg.  Insts.  §  876  ;  Briggs  v.  Latham,  36  Kan.  255,  13  Pac.  393,  59 
Am.  Rep.  546,  548  ;  Curtis  v.  Leavitt,  15  N.  Y.  9,  88.  See  Story,  Confl.  L. 
§  273.  But  the  inference  should  be  very  clear  in  order  to  change  the  general 
rule.  See  Curtis  v.  Leavitt,  supra.  It  is  to  be  observed  that  such  circum- 
stances do  not  affect  the  locus  celebrationis  of  the  contract.  The  parties  have 
their  choice  before  entering  into  their  contract  as  to  the  State  where  they  shall 
make  it,  but  once  entered  into,  their  choice  is  irrevocably  laid  upon  the  State 
vhere,  as  a  matter  of  fact,  the  contract  is  made.     The  parties,  when  they 


§  159  LOCUS   SOLUTIONIS  —  NONE   NAMED.  379 

Paradoxical  as  it  may  seem,  there  is  often  more  diflficulty  in 
determining  the  locus  solutionis  of  a  contract  which  expressly 
designates  a  place  of  performance,  than  where  none  is  named. 
The  reason  is  that  the  parties  sometimes  attempt  to  cover  their 
real  intentions  touching  the  place  of  performance  by  falsely 
naming  a  place  which  they  do  not  really  intend  to  be  the  true 
locus  solutionis.  This  is  done  in  order  to  evade  the  law  of  the 
real  place  of  performance,  when  it  would  condemn  the  contract. 
In  such  cases,  where  the  locus  solutionis  is  of  importance,  it  is 
the  duty  of  the  court  to  disregard  the  false  witness  of  the  parties' 
•contract,  and  to  ascertain  the  place  of  performance  really  in- 
tended. For  though  the  parties  have  the  right  to  choose  bona 
fide  the  place  where  their  contract  is  to  be  performed,  they  have 
not  the  right,  in  order  to  evade  the  law  of  the  place  they  have 
really  chosen,  to  pretend  that  they  have  selected  a  different 
place.®  Thus  it  has  been  held  by  courts  which  take  the  view 
that  the  validity  of  usurious  contracts  is  dependent  upon  the 
lex  solutionis '  that  a  debt  falsely  pretended  to  be  made  or 
payable  in  a  particular  State,  so  that  usurious  interest  may  be 
exacted  under  its  law,  will  not  be  enforced.'' 

But  the  mere  fact  that  the  motive  for  selecting  a  particular 
place  as  the  locus  celebrationis  or  locus  solutionis  of  a  contract 
is  to  evade  the  law  of  another  State  is  immaterial,  if  the  choice 
is  bona  fide.  The  important  point  is  that  the  parties  have  the 
right  to  select  the  locus.     That  being  conceded,  the  reasons 

have  entered  into  a  contract  in  one  State,  cannot,  merely  hy  intending  so  to  do, 
make  it  a  contract  entered  into  in  another. 

»  Akers  v.  Demond,  103  Mass.  318,  324  ;  U.  S.  Sav.  &  L.  Ass.  v.  Scott,  98 
Ky.  695,  34  S.  W.  235.  The  same  principle  applies  to  the  locus  celebrationis 
of  the  contract,  as  mentioned  in  the  preceding  note.  See  MuL  Ben.  L.  Ins. 
Co.  V.  Robison,  54  Fed.  580 ;  Wall  v.  Equitable,  etc.  Society,  32  Fed.  273, 
275  ;  Fletcher  v.  Ins.  Co.,  13  Fed.  526  ;  American  Mortg.  Co.  v.  JeflFerson,  69 
Miss.  770,  12  So.  464.  But  see  Strawbridge  v.  Robinson,  5  Gilm.  (111.)  470, 
50  Am.  Dec.  420  ;  Morris  v.  Hockaday,  94  N.  C.  286,  55  Am.  Rep.  607  and 
note. 

^  The  law  governing  usurious  contracts  will  be  discussed  hereafter.  See 
post,  §  179. 

7  U.  S.  Sav.  &  L.  Ass'n  v.  Scott,  98  Ky.  695,  34  S.  W.  235  ;  American 
Mortg.  Co.  V.  Jeflferson,  69  Miss.  770,  12  So.  464.  See  The  Energia,  56  Fed. 
124,  127. 


380       SEVERAL  PLACES  OF  PERFOEMANCB.     §  160 

which  induce  them  to  make  a  particular  choice  are  not  open  to 
inquiry. 

Some  of  the  authorities  seem  to  point  to  the  conclusion  that 
where  the  contract  itself  designates  no  place  of  performance, 
and  where  therefore  the  locus  solutionis  may  be  said  to  be  in 
doubt,  a  presumption  will  arise  that  the  parties  intended  to  enter 
into  a  valid  agreement,  and  hence,  upon  the  principle  that  that 
construction  will  be  placed  upon  ambiguous  terms  which  will  up- 
hold rather  than  nullify  a  contract,  the  presumption  that  the 
locus  solutionis  is  identical  with  the  locus  celebrationis  (by 
whose  law  the  contract  would  be  invalid)  will  yield  to  the  pre- 
sumption that  the  parties  intended  to  perform  their  contract  in 
a  State  whose  law  would  permit  of  its  performance,  provided 
the  circumstances  point  to  any  such  State  as  reasonably  within 
the  view  of  the  parties  at  the  time.' 

§  160.  Same  —  Several  Places  of  Performance.  —  It  some- 
times happens  that  a  contract  may  be  intended  by  the  parties  to 
be  performed,  as  to  different  parts  thereof,  in  several  places.  If 
the  contract  relates  to  several  distinct  and  divisible  acts,  there 
is  no  difficulty  in  perceiving  that  as  to  each  of  these  several 
acts  in  performance  of  the  contract  the  contract  may  have  a 
separate  locus  solutionis.  In  reality,  they  are  several  contracts 
in  one.^ 

8  Pritchard  v.  Norton,  106  U.  S.  124,  137;  Bell  v.  Packard,  69  Me.  105,  31 
Am.  Rep.  251,  253  ;  Dickinson  v.  Edwards,  77  N.  Y.  573,  578,  33  Am.  Rep. 
671 ;  American  Mortg.  Co.  v.  Jefferson,  69  Miss.  770,  12  So.  464,  465  ;  Scott 
V.  Perlee,  39  Ohio  St.  63,  48  Am.  Rep.  421,  423  ;  Kellogg  v.  Miller,  13  Fed. 
198,  199.  This  presumption  can  only  arise  in  cases  where  there  is  no  clear 
evidence  or  inference  as  to  the  place  intended  by  the  parties  as  the  locus  solu- 
tionis. It  does  not  (as  many  of  the  above  cases  strongly  imply)  furnish  evi- 
dence of  what  law  the  parties  intend  to  govern  their  contract  (for  in  that 
respect,  where  the  validity  of  the  contract  is  in  question,  the  parties'  inten- 
tions are  immaterial).  It  merely  furnishes  evidence  of  what  place  the  parties 
intend  as  the  locus  solutionis  of  the  contract.  It  is  of  value  therefore  only 
in  cases  where  the  particular  element  of  the  contract  urged  as  being  contrary 
to  law  relates  to  the  performance  of  the  contract,  for  the  locus  solutionis  is  of 
no  importance,  where  the  invalidity  alleged  relates  to  the  making  of  the  con- 
tract  or  its  consideration. 

1  Pope  V.  Nickerson,  3  Story,  465,  484  ;  Curtis  r.  R.  R.  Co.,  74  N.  Y.  116, 
30  A.m.  Rep.  271;  Liverpool  Steam  Co.  v.  Ins.  Co.,  129  U.  S.  397,  454. 


§  160     SEVERAL  PLACES  OF  PERFORMANCE.       381 

But  where  the  act  contracted  to  be  done  is  a  continuous  act, 
the  performance  of  which  may  run  through  several  States,  such 
as  a  contract  of  through  transportation,  the  weight  of  authority 
seems  to  be  to  the  effect  that  this  constitutes  an  entire  contract, 
not  divisible,  and  can  only  have  one  fixed  place  of  performance, 
namely,  the  terminus  of  the  journey.* 

Some  of  the  decisions  however  take  the  view  that,  although 
the  final  place  of  performance  is  the  terminus  of  the  journey, 
yet  there  is  a  complete  performance  of  part  of  the  contract  long 
before  the  journey  is  ended.  As  each  mile  is  covered,  so  much 
of  the  contract  is  performed:  the  performance  is  by  stages,  so 
to  speak;  and  the  locus  solutionis  of  the  contract  of  carriage 
shifts  from  one  State  to  another,  as  the  goods  or  passengers 
themselves  are  transferred  from  one  State  to  the  other.' 

The  latter  view  would  seem,  upon  principle,  to  be  the  better; 
otherwise  the  carrier  might  sometimes  be  subject  to  different 
liabilities,  according  as  he  is  sued  in  contract  or  in  tort.  The 
New  York  case  of  Dike  v.  K.  R.  Co.*  affords  an  excellent  illus- 
tration of  the  inconvenience  that  may  result  from  the  first  view. 
In  that  case,  the  plaintiff  had  purchased  a  ticket  on  the  defend- 
ant's road  from  Attica,  N.  Y.,  to  the  city  of  New  York.  In 
order  to  reach  New  York,  the  road  ran  through  a  part  of  Penn- 
sylvania and  New  Jersey.  Thus  the  contract  of  carriage  was 
made  and  was  to  be  finally  performed  in  the  State  of  New  York. 
While  passing  through  Pennsylvania,  an  accident  occurred  and 
the  plaintiff  was  injured.  A  statute  of  Pennsylvania  provided 
that  in  such  cases  the  amount  of  the  recovery  should  be  limited 
to  $3,000.  There  was  no  such  limitation  in  New  York.  Action 
was  brought  in  New  York  for  the  breach  of  the  contract  to  carry 

2  Liverpool  Steam  Co.  v.  Ins.  Co.,  129  U.  S.  397,  454  et  seq. ;  Dike  v.  R.  R. 
Co.,  45  N.  Y.  113,  117;  Curtis  v.  R.  R.  Co.,  74  N.  Y.  116,  30  Am.  Rep.  271  ; 
Brown  v.  R.  R.  Co.,  83  Penn.  St.  316.  See  Phinney  v.  Ins.  Co.,  67  Fed.  493, 
498 ;  Hale  v.  Nav.  Co.,  15  Conn.  539,  39  Am.  Dec.  398. 

3  Barter  v.  Wheeler,  49  N.  H.  9,  29,  6  Am.  Rep.  434 ;  Pope  v.  Nickerson, 
3  Story,  465,  485;  Curtis  v.  R.  R.  Co.,  74  N.  Y.  116,  30  Am.  Rep.  271; 
Talbott  V.  Transportation  Co.,  41  la.  247,  20  Am.  Rep.  589  ;  Burnett  v.  R.  R. 
Co.,  176  Penn.  St.  45,  34  Atl.  972 ;  Baetjer  v.  La  Compagnie,  59  Fed.  789. 

*  45  N.  Y.  113.     See  Burnett  v.  R.  R.  Co.,  176  Penn.  St.  45,  34  Atl.  972. 


382  CONTRACTS  —  LOCUS   CONSIDERATIONIS.         §  161 

the  plaintiff  safely,  and  the  court  held  that  the  New  York  law 
applied  on  the  ground  that  New  York  was  the  locus  solutionis 
of  the  contract,  and  that  the  amount  of  damages  recoverable 
was  not  merely  a  matter  of  remedy.  If  the  action  had  been 
ex  delicto  instead  of  ex  contractu,  the  lex  loci  delicti  (Pennsyl- 
vania law)  would  have  controlled,*  and  a  different  result  would 
have  been  reached.  This  would  be  unfortunate.  The  New 
York  court  attempts  to  evade  this  conclusion,  but  with  doubtful 
success.  Under  the  second  view  above  given  the  measure  of 
liability  would  have  been  the  same  whether  the  action  was  ex 
contractu  or  ex  delicto.  The  locus  solutionis  of  the  contract 
would  have  shifted  with  the  defendant's  cars,  and  at  the  time 
of  the  breach  would  have  been  in  Pennsylvania. 

Another  question  may  arise  as  to  the  locus  solutionis,  wheix 
the  contract  is  to  be  performed,  in  the  option  of  the  promisor, 
either  in  one  State  or  in  another.  Here  an  alternative  is  given 
the  promisor,  and  it  would  seem  upon  principle  that  the  locus 
solutionis  would  remain  undetermined  until  he  exercises  his  elec- 
tion. Then  the  place  where  he  actually  performs  the  contract 
is  the  locus  solutionis.*  But  there  are  difficulties  in  the  way 
of  this  theory,  especially  if  the  promisor  never  performs  his 
contract  at  either  place.  ^ 

§  161.  Locus  ConsiderationiB. — The  consideration  of  a  con- 
tract is  a  matter  collateral  to,  not  part  of,  the  promise.  It 
need  not  appear  on  the  face  of  the  promise,  but  is  in  general 
essential  to  its  validity.  A  promise  without  a  consideration  is 
a  mere  nudum  pactum,  and  usually  creates  no  legal  obligation. 
So  a  promise  upon  a  consideration,  which  is  itself  prohibited  by 
law  or  contrary  to  public  policy,  creates  no  legal  obligation. 

Certain  acts  or  matters  may  be  deemed  in  one  country  to 
be  considerations  sufficient  to  support  a  promise,  though  not 
sufficient  in  another;   and  considerations  regarded  as  legal  in 

6  See  post,  §  198, 

«  See  Porter  v.  Price,  49  U,  S.  App.  295,  80  Fed.  655. 

">  See  Hale  v.  Nav.  Co.,  15  Conn.  538,  546,  39  Am.  Dec.  398.  In  this 
caae,  the  court  was  forced  to  fall  back  on  the  locus  celebrationis  as  the  locus 
solutionis  also.  A  carrier  had  agreed  in  New  York  to  deliver  the  goods 
sither  at  Boston,  Massachusetts,  or  at  Providence,  R.  I. 


§161         CONTRACTS  —  LOCUS   CONSIDER ATIONIS.  383 

one  State  may  be  held  illegal  or  contrary  to  public  policy  in 
another. 

Thus,  in  Pritchardv.  Norton,*  Norton  executed  and  delivered 
to  Pritchard  in  New  York  a  bond  of  indemnity,  conditioned  to 
fully  indemnify  him  against  all  loss  arising  from  his  liability 
on  an  appeal  bond  which  the  latter  had  signed  in  Louisiana  as 
surety  on  behalf  of  a  certain  defendant  in  a  judgment  in  the 
Louisiana  courts,  and  which  he  was  compelled  to  pay.  The 
bond  of  indemnity  was  executed  in  New  York,  but  named  no 
place  of  performance  or  payment.  By  the  law  of  New  York, 
a  contract  under  seal  was  only  prima  facie  evidence  of  a  con- 
sideration, and  past  services  constituted  no  consideration.  In 
Louisiana  the  law  was  otherwise.  The  question  was  whether 
the  New  York  bond  of  indemnity,  the  only  consideration  of 
which  was  the  past  service  of  Pritchard  in  going  upon  the 
appeal  bond  in  Louisiana  (no  contemporaneous  promise  of  in- 
demnity having  been  made),  was  to  be  deemed  nudum  pactum. 
The  United  States  Supreme  Court  held  that  the  question  was  to 
be  decided  by  the  law  of  Louisiana  {lex  loci  consider ationis).'^ 

Again,  if  the  question  relates  to  the  legality  of  the  considera- 
tion, it  is  the  lex  loci  considerationis,  not  the  lex  celebrationis 
nor  lex  solutionis,  which  is  to  determine  the  effect  and  conse- 
quences of  the  act  set  forth  as  the  consideration.  Except  in 
cases  of  considerations  which  are  mala  in  se,  or  universally 
deemed  contra  bonos  mores,*  the  policy  of  a  State  is  not  usually 
concerned  with  acts  done  elsewhere,  and  neither  encourages  nor 
discourages  them :  it  leaves  their  effect  to  be  determined  by  the 
law  of  the  State  where  the  act  in  question  is  done. 

Thus,  let  us  suppose  that  a  note  is  made  in  Vermont  and 
payable  there,  being  given  in  consideration  of  liquor  sold  and 

1  106  U.  S.  124. 

*  The  court's  decision,  however,  was  not  based  upon  this  ground,  but  upon 
the  ground  that  Louisiana  was  the  locus  solutionis  of  the  contract,  though  the 
bond  was  executed  in  New  York  and  named  no  other  place  for  payment  or 
performance.  It  is  respectfully  submitted  that  the  law  of  Louisiana  deter- 
mined the  sufficiency  of  the  consideration,  not  because  that  State  was  the 
locus  solutionis  of  the  contract,  but  because  it  was  the  locus  considerationis. 
The  question  was  one  of  consideration,  not  of  performance. 

«  Ante,  §  9.  . 


384  CONTRACTS  —  LOCUS   CONSIDERATIONIS.         §  161 

delivered  to  the  maker  in  New  York;  that  the  sale  of  liquor  is 
prohibited  by  the  law  of  Vermont,  and  all  notes  and  securities 
in  payment  therefor  are  declared  void ;  but  that  by  the  law  of 
New  York  the  sale  of  the  liquor  is  valid.  It  is  obvious  that  the 
validity  of  this  note  is  to  be  determined,  not  by  the  law  of  Ver- 
mont, though  that  is  both  the  locus  celebrationis  and  the  locus 
solutionis  of  the  note,  but  by  the  law  of  New  York,  the  situs 
of  the  consideration;  for  the  law  of  Vermont  was  manifestly 
applicable  only  to  sales  of  liquor  in  Vermont.  The  note  would 
therefore  be  valid.*  On  the  other  hand,  if  the  above  note  had 
been  executed  and  made  payable  in  New  York,  the  sale  of  the 
liquor  taking  place  in  Vermont,  the  law  of  Vermont  (lex  con- 
siderationis)  would  govern,  not  the  law  of  New  York  (lex  cele- 
brationis et  solutionis),  and  the  note  would  be  void.' 

Wagers,  gaming,  lotteries,  etc.,  are  not  universally  con- 
demned as  immoral,  and  therefore  should  not  be  classed  as 
considerations  mala  in  se.®  Hence,  if  a  contract  is  made,  the 
consideration  for  which  is  a  gaming  debt,  or  the  sale  of  lottery 
tickets,  or  the  conduct  of  a  lottery,  the  validity  of  the  con- 
tract in  this  respect  will  depend  upon  the  law  of  the  situs  of  the 
consideration,  which  may  or  may  not  be  the  place  where  the 
contract  is  made  or  to  be  performed.'' 

These  examples  suffice  to  show  that  the  lex  loci  considera- 
tionis  plays  no  small  part  in  governing  the  validity  of  a  con- 
tract, 80  that  the  rules  by  which  the  locus  considerationis 
or  situs  of  the  consideration  is  ascertained  deserve  attention. 

*  "Webber  v.  Howe,  36  Mich.  150,  24  Am.  Rep.  590 ;  Boothby  v.  Plaisted. 
51  N.  H.  436,  12  Am.  Rep.  140  ;  Tegler  v.  Shipman,  33  la.  194,  11  Am. 
Rep.  118. 

*  Keiwert  v.  Meyer,  62  Ind.  587,  30  Am.  Rep.  206 ;  Webber  v.  Howe,  36 
Mich.  150,  24  Am.  Rep.  590  ;  Suit  v.  Woodhall,  113  Mass.  391  ;  Weil  v. 
Golden,  141  Mass.  364. 

'  The  general  rule  is  to  consider  these  matters  as  subject  to  their  "  proper 
law,"  though  some  of  the  decisions  treat  them  as  inimical  to  morals  and  contra 
bonos  mores,  no  matter  what  the  law  of  their  situs.  See  Flagg  v.  Baldwin,  38 
N.  J.  Eq.  219,  48  Am.  Rep.  308. 

T  Thatcher  v.  Morris,  11  N.  Y.  437;  Mclntyre  v.  Parks,  3  Met.  (Mass.) 
207;  Feet  v.  Hatcher,  112  Ala.  514,  21  So.  711.  See  Sondheim  v.  Gilbert, 
117  Ind.  71,  18  N.  E.  687.    But  see  Robinson  v.  Bland,  2  Burr.  1077. 


§  162    CONSIDERATIONS  EXECUTED  AND  EXECUTORY.    385 

For  the  most  part  they  are  simple  enough  if  we  recur  to  first 
principles.' 

§  162.    Same  —  Ck>iiaiderations   Executed    cind    Executory. 

—  A  consideration  to  support  an  executory  contract  may  consist 
either  in  an  act  done  hy  the  promisee  or  in  an  agreement  made 
by  him,  and  such  agreement  may  itself  be  either  executed  or 
executory;  or  finally  it  may  consist  in  some  antecedent  promise 
or  liability  of  the  promisor. 

If  the  consideration  be  an  act  done  by  the  promisee,  the 
maxim,  ^^  locus  regit  actum,"  applies.  The  validity  and  effect 
of  the  consideration  will  depend  upon  the  lex  loci  considera- 
tionis,  and  the  locus  considerationis  in  such  case  is  a  mere  ques- 
tion of  fact.  Indeed  if  the  consideration  is  an  act  done  at  the 
time  of  making  the  contract,  the  locus  considerationis  and  the 
locus  celebrationis  of  the  contract  will  always  coincide. 

If  the  consideration  is  itself  an  agreement  on  the  part  of  the 
promisee,  its  situs  will  be  the  situs  of  the  promisee's  contract, 
and  will  be  determined  in  accordance  with  the  principles  which 
govern  the  situs  of  contracts  generally,  —  the  same  principles 
which  are  now  being  discussed  in  this  chapter.  If  the  consid- 
eration (the  promisee's  agreement)  is  an  executed  contract,  its 
validity  and  the  corresponding  validity  of  the  promisor's  con- 
tract will  depend  upon  the  law  of  the  place  where  the  promisee's 
agreement  is  entered  into  (its  lex  celebrationis).  If  the  con- 
sideration (the  promisee's  agreement)  is  executory,  its  validity 
and  the  consequent  validity  of  the  promisor's  contract  will 
depend  upon  the  lex  celebrationis  or  the  lex  solutionis  of  the 
promisee's  agreement,  according  to  the  particular  element  at- 
tacked as  invalid.^ 

It  is  to  be  observed,  in  the  cases  above  mentioned,  that  in 
strictness  the  act  done  or  the  agreement  made  by  the  promisee, 
if  they  are  to  form  the  direct  consideration  for  the  promisor's 
promise,  must  be  done  or  entered  into  at  the  moment  when,  and 
therefore  at  the  place  where,  the  promisor's  contract  is  entered 
into.     If  the  promisee's  act  or  agreement  is  done  or  made  after 

8  Post,  §§  176  et  seq. 

1  See  post,  §§  168-175,  where  the  law  governing  the  different  cases  of  in- 
validity is  fully  considered. 

25 


3b6    CONSIDERATIONS  EXECUTED  AND  EXECUTORY.    §  162 

the  promisor's,  there  is  no  consideration  to  support  the  promisor's 
contract;  if  done  or  made  before  the  promisor's,  the  considera- 
tion is  a  past  consideration,  which  is  generally  held  to  be  equiva- 
lent to  none  at  all. 

When  a  past  act  or  agreement  by  the  promisee  is  said  to 
constitute  a  consideration  for  a  promise,  it  is  an  inaccurate 
mode  of  expression.  The  past  act  or  agreement  may  raise  a 
liability  in  the  promisor,  —  an  implied  promise  on  his  part,  — 
arising  at  the  moment  of  the  act  done  or  the  agreement  made, 
which  implied  promise  may  subsequently  be  changed  into  an 
express  promise.  In  such  case,  the  consideration  for  the  ex- 
press promise  is  not  the  act  or  agreement  of  the  promisee  at  all, 
but  the  liability  of  the  promisor  arising  contemporaneously  with 
that  act  or  agreement  and  springing  out  of  it.  Whether  such 
liability  legally  arises  from  the  act  or  agreement  of  the  promisee 
depends  upon  the  law  of  the  place  where  the  act  is  done  or  the 
agreement  is  made.  If  by  that  law  it  does  arise,  it  continues  a 
burden  upon  the  promisor  wherever  he  may  be,  and  constitutes  a 
valid  consideration  to  support  his  express  promise  wherever  made. 
If  no  such  liability  arises  in  the  first  instance  under  the  law  of 
the  State  where  the  promisee's  act  is  done,  or  his  agreement  ia 
made,  there  is  no  liability  upon  the  promisor  anywhere.  In 
the  latter  case  therefore  an  express  promise  made  by  the  prom- 
isor is  only  for  a  past  consideration  (which  is  no  consideration), 
there  being  no  implied  liability  legally  resting  upon  him. 

Hence  when  we  spoke,  in  the  preceding  section,  of  a  note  made 
in  Vermont  in  consideration  of  a  sale  of  liquor  in  New  York,  it 
will  be  seen  that,  strictly  speaking,  such  language  is  inaccurate. 
The  consideration  for  the  note  in  such  a  case  is  not  in  reality  the 
sale  of  the  liquor :  that  would  be  a  past  consideration.  The  real 
consideration  for  the  note  is  the  promise  to  pay  for  the  liquor 
purchased,  which  promise  was  implied  by  the  law  of  New  York 
(or  validly  agreed  upon  there  expressly  by  the  parties).  But  the 
inaccuracy  is  immaterial,  since  the  law  of  the  place  of  the  prom- 
isee's act  or  agreement  controls  the  validity  of  the  liability,  and 
the  validity  of  the  note  would  depend  upon  the  validity  of  the 
promisor's  antecedent  liability,  which  is  the  consideration  for 
the  note. 


§  162    CONSIDERATIONS  EXECUTED  AND  EXECUTORY.    387 

The  result  of  this  reasoning  is  that,  for  our  purposes,  we  may 
disregard  those  considerations  which  consist  of  liabilities  merely 
created  by  the  law;  for  they  will  always  arise,  if  at  all,  imme- 
diately upon  some  act  of  the  parties,  and  the  validity  of  the  con- 
tracts for  which  they  are  the  consideration  will  always  in  the 
end  depend  upon  the  law  governing  the  act  out  of  which  they 
arise.  We  need  look  therefore  only  to  the  locus  of  the  act  itself, 
whose  law  will  govern  the  validity  of  the  consideration.  And, 
to  simplify  matters,  we  may  regard  the  act  itself  as  the  consid- 
eration, though  the  act  be  done  before  the  promise  is  entered 
into. 

Thus  viewed,  there  will  be  no  difficulty  in  ascertaining  the 
locus  considerationis  if  the  consideration  is  a  mere  act  done  by 
the  promisee,  whether  it  be  done  in  the  State  where  the  prom- 
isor's contract  is  made  or  elsewhere.  The  validity  of  the  prom- 
isee's act,  judged  by  the  lex  considerationis,  will  determine  the 
validity  of  the  promisor's  contract.  And  the  same  may  be  said 
where  the  consideration  consists  in  an  executed  agreement  of  the 
promisee.  But  where  the  consideration  is  an  executory  contract 
of  the  promisee,  it  may  have  a  distinct  locus  celebrationis  and 
locus  solutionis  of  its  own,  and  both  of  these  may  be  different 
from  the  locus  celebrationis  and  the  locus  solutionis  of  the 
promisor's  contract.  In  some  respects  the  validity  of  the 
promisee's  contract  may  be  controlled  by  its  lex  celebrationis, 
in  some  respects  by  its  lex  solutionis.  And  neither  of  these 
are  necessarily  coincident  with  the  locus  celebrationis  or  the 
locus  solutionis  of  the  promisor's  contract.  Illustrations  of 
these  principles  will  be  given  hereafter.^ 

'  See  post,  §  176.  It  would  be  rarely  the  case  however  that  the  locus 
celebrationis  of  the  promisee's  contract  (consideration)  would  not  be  identical 
with  the  locus  celebrationis  of  the  promisor's  contract,  as  the  two  promises 
will  generally  be  made  contemporaneously.  But,  bearing  in  mind  the  ex- 
planation above  given  touching  the  eflFect  of  the  promisor's  antecedent  liability 
as  a  consideration,  and  our  agreement  to  disregard  it,  substituting  therefor  the 
act  out  of  which  that  liability  arose,  we  may  easily  conceive  of  a  case  like  the 
following  :  A  promises  B  in  Maryland  to  do  an  act  for  B  in  Pennsylvania,  in 
consideration  of  B's  doing  an  act  for  A  in  New  York.  So  far  both  contracts 
have  the  same  locus  celebrationis,  though  diflferent  loci  solutionis.  Now  sup- 
pose A,  in  consideration  of  his  existing  promise  to  B,  enters  into  another 


388  SITUS   OF  CONTRACTS   TO   PAY   MONEY.  §  163 

§  163.  Situ*  of  Particular  Contracts  —  Contracts  to  Pay 
Money. — Having  noted  the  general  principles  by  which  the 
locus  celebrationis  or  the  locus  solutionis  of  a  contract  will  be 
ascertained,  we  will  now  turn  our  attention  to  some  particular 
instances  of  contracts,  which  present  more  or  less  difficulty  in 
the  solution  of  these  questions.  It  will  repay  us  to  examine 
more  closely  into  the  cases  of  contracts  to  pay  money  and  con- 
tracts of  insurance. 

With  regard  to  contracts  to  pay  money  generally,  there  is 
usually  little  difficulty  in  applying  the  principles  heretofore 
noted  in  determining  the  locus  celebrationis.  This  will  always 
be  the  place  where  the  last  act  is  done  necessary  to  bind  the 
promisor.-^  If  the  contract  is  oral,  it  will  be  the  place  where 
the  words  of  assent  or  promise  are  spoken  j  if  written,  the  mere 
signing  or  sealing  will  not  usually  be  sufficient  to  bind  the 
promisor.  There  must  be  a  delivery  and  acceptance  of  the  in- 
strument also,  which  is  the  final  token  of  the  promisor's  assent. 
Hence  the  place  of  delivery,  not  the  place  of  signing,  is  the 
place  where  the  minds  of  the  parties  meet,  and  is  the  locus 
celebrationis  of  the  contract.*  But  if  the  note  or  bond  is  drawn 
up  by  the  payees,  and  sent  by  them  to  the  maker  in  another 
State  for  his  signature,  without  instructions  as  to  how  it  shall 
be  returned,  the  maker's  acceptance  of  the  payee's  offer  is  com- 
plete upon  his  signing  the  note  and  depositing  it  in  the  post 

agreement  with  B  in  Ohio,  by  which  A  agrees  to  do  the  same  act,  before 
agreed  upon,  in  Virginia,  instead  of  in  Pennsylvania  as  the  terms  of  the  first 
agreement  demanded.  Here  we  would  have  A's  promise  made  in  Ohio  to  be 
performed  in  Virginia.  The  consideration  of  A's  promise  would  be  B's  promisa 
made  in  Maryland,  to  be  performed  in  New  York.  There  is  no  need  to  da 
more  than  merely  point  out  that  such  a  case  may  arise.  As  a  general  rule  the 
loci  celebrationis  of  the  two  mutual  promises  will  coincide.  It  might  easily 
be  otherwise,  however,  with  the  loci  solutionis. 

1  Ante,  §  157. 

2  Baum  V.  Birchall,  150  Penn.  St.  164,  24  Atl.  620  ;  Fant  v.  Miller,  17 
Gratt.  (Va.)  47,  59  ;  Akers  v.  Demond,  103  Mass.  318,  324  ;  Lawrence  v.  Bas- 
sett,  5  Allen  (Mass.),  140  ;  Bell  v.  Packard,  69  Me.  105,  31  Am.  Rep.  251, 
252  ;  Hart  v.  Wills,  52  la.  56,  2  N.  W.  619,  35  Am.  Rep.  255  ;  Carnegie 
Steel  Co.  V.  Construction  Co.  (Tenn.),  38  S.  W.  102  ;  Phipps  v.  Harding,  17 
C.  C.  A.  203,  70  Fed.  468,  471. 


S  163  SITUS   OF   CONTRACTS   TO   PAY  MONEY.  389 

c 

office,  properly  addressed  to  the  payees,  and  the  place  of  the 
signature  is  the  locus  celebrationis  of  the  contract.' 

The  locus  solutionis  of  a  bond  or  note  will  be  the  place  where 
the  parties  intend  it  to  be  paid  at  maturity.  If  the  place  where 
it  is  payable  is  designated  on  the  face  of  the  instrument,  that 
is  the  locus  solutionis,*  unless  the  parties  have  really  a  different 
intention  as  to  the  place  of  performance  from  that  expressed  on 
the  face  of  the  note.  It  is  the  real  intent,  not  the  expressions 
of  the  parties,  that  is  looked  to.' 

If  no  place  of  payment  is  named  on  the  face  of  the  instru- 
ment, the  strong  presumption  is  that  it  was  intended  to  be  pay- 
able at  the  locus  celebrationis, '  though  this  may  be  rebutted  by 
clear  evidence  or  inference  that  the  parties  looked  to  some  other 
place  as  the  locus  solutionis,  as  where  the  maker  executes  the 
note  while  in  transit  through  the  State.^  In  such  case,  if  the 
bond  or  note  be  payable  at  a  future  day,  it  is  reasonable  to  pre- 
sume that  the  parties  look  to  the  creditor's  or  the  debtor's  domicil 
•  as  the  place  of  payment,  rather  than  the  State  which  is  by  mere 
accident  the  locus  celebrationis  ;  and  since  it  is  the  duty  of  the 
debtor  to  resort  to  the  creditor's  place  of  business  on  the  ap- 
pointed day  to  pay  him,  it  would  seem  that  the  locus  solutionis 
should  be  the  creditor's  domicil  rather  than  that  of  the  debtor.* 

8  Barrett  v.  Dodge,  16  R.  I.  740,  19  Atl.  530 ;  Wayne  Co.  Bank  v.  Low, 
81  N.  Y.  566,  572,  37  Am.  Rep.  533.  See  Sheldon  v.  Haxtun,  91  N.  Y.  124, 
131.     But  see  Staples  v.  Nott,  128  N.  Y,  403,  28  N.  E.  515. 

*  Bryant  v.  Edson,  8  Vt.  325,  30  Am.  Dec.  472. 

6  Ante,  §  159.     See  New  England  Mortg.  Co.  v.  Vaden,  28  Fed.  265. 

6  Barrett  v.  Dodge,  16  R.  I.  740,  19  Atl.  530 ;  Hart  v.  "Wills,  52  la.  56, 
35  Am.  Rep.  255,  2  N.  W.  619 ;  Lewis  v.  Headley,  36  El.  433,  87  Am.  Dec. 
227  ;  Wilson  v.  Lazier,  11  Gratt.  (Va.)  477. 

^  Ante,  §  159,  note  4.  Even  here,  if  the  note  is  payable  on  demand,  since 
it  falls  due  immediately,  it  would  seem  that  the  locus  celebrationis  and  the 
locus  solutionis  must  generally  be  regarded  as  identical.  Smith  v.  Mead, 
3  Conn.  253,  8  Am.  Dec.  183. 

8  See  Pritchard  v.  Norton,  106  U.  S.  124,  138 ;  De  Wolf  v.  Johnson,  10 
Wheat.  367,  383  ;  Lanusse  v.  Barker,  3  Wheat.  101 ;  Boyle  v.  Zacharie,  6  Pet. 
635 ;  Hickox  v.  Elliott,  27  Fed.  830,  839  ;  Chapman  v.  Robertson,  6  Pai.  Ch. 
(N.  Y.)  627,  630,  31  Am.  Dec.  264.  If  the  bond  or  note  is  given  in  pur- 
suance of  an  order  of  court,  no  place  of  payment  being  designated,  it  seems 
that  it  is  to  be  regarded  as  payable  at  the  situs  of  the  court.     Irvine  v.  Bar- 


390  SITUS   OF  CONTRACTS   TO   PAY   MONET.  §  163 

So,  the  fact  that  the  bond  or  note,  though  executed  in  one 
country,  is  payable  in  the  currency  of  another,  may  be  evi- 
dence of  the  intention  of  the  parties  to  make  the  latter  State 
the  place  of  payment;  or  the  fact  that  accruing  interest  is  ex- 
pressly made  payable  in  another  State  may  afford  reasonable 
ground  for  the  presumption  that  the  principal  was  intended  to 
be  paid  there.' 

Some  difficulty  is  found  in  ascertaining  the  locus  solutionis 
of  a  bond  or  note,  naming  no  place  of  payment,  made  in  one 
State  and  secured  by  mortgage  on  property  in  another.  Here 
as  in  other  cases  the  question  is  one  of  intent.  Do  the  parties 
intend  that  the  bond  or  note  shall  be  payable  at  the  place  where 
the  mortgaged  property  is  situated  ?  It  is  not  at  all  a  neces- 
sary inference  that  they  do.  The  mortgage  is  merely  a  col- 
lateral agreement,  the  object  of  which  is  to  secure  payment  at 
the  time  and  place  agreed  upon,  which  may  or  may  not  be  the 
situs  of  the  mortgaged  property.  Unless  other  circumstances 
point  to  that  place  as  the  intended  place  of  payment,  the  mere 
existence  of  the  mortgage  cannot  logically  give  rise  to  an  infer- 
ence of  such  an  intention;  and  the  better  opinion  is  believed 
to  be  that  it  does  not.^** 

If  the  promise  to  pay  is  not  express,  but  implied  from  the  ac- 
ceptance of  goods  sold,  work  done,  services  rendered,  money 
loaned,  account  stated,  etc.,  the  indebtedness  is  created  at  the 
place  where  the  goods  are  sold,  the  services  rendered,  etc.;  for 

rett,  2  Grant's  Cas,  (Penn.)  73 ;  Pritchard  v.  Norton,  106  U.  S.  124,  138.  In 
case  of  the  bond  of  a  public  officer,  conditioned  to  perform  public  duties  faith- 
fully, the  place  of  payment  is  the  seat  of  government.  Cox  v.  United  States, 
6  Pet.  172  ;  Duncan  v.  United  States,  7  Pet.  435;  Pritchard  v.  Norton,  106 
U.  S.  124,  139. 

9  Curtis  V.  Leavltt,  15  N.  Y.  9,  86,  87.  See  Coghlan  v.  R.  R.  Co.,  142 
U.  S.  101. 

w  De  Wolf  V.  Johnson,  10  Wheat.  367,  383  ;  Hickox  v.  Elliott,  27  Fed.  830, 
839  ;  Central  Trust  Co.  v.  Burton,  74  Wis.  329,  43  N.  W.  141,  142  ;  Odom  v. 
Mortg.  Co.,  91  Ga.  505,  18  S.  E.  131  ;  New  England  Mortg.  Co.  v.  McLaugh- 
lin, 87  Ga.  1,  13  S.  E.  81  ;  Martin  v.  Johnson,  84  Ga.  481,  8  L.  R.  A.  170,  10 
S.  E.  1092  ;  American  Mortg.  Co.  v.  Sewell,  92  Ala.  163,  9  So.  143;  Fessenden 
V.  Taft,  65  N.  H.  39,  17  Atl.  713  ;  Chapman  v.  Robertson,  6  Pai.  Ch.  (N.  Y.) 
•27,  633,  634,  31  Am.  Dec.  264.     See  Kellogg  v.  Miller,  13  Fed.  198 


§  164   SITUS  OF  maker's  or  acceptor's  contract.   391 

the  indebtedness,  if  it  arises  at  all,  must  arise  at  the  moment 
the  benefit  is  conferred,  or  the  act  done  which  is  alleged  to 
create  it.  And  the  locus  solutionis  of  the  implied  promise  will 
of  course  be  identical  with  the  locus  celebrationis.^^ 

§  164.  Negotiable  InstrumentB  —  Contract  of  Meiker  or 
Acceptor.  —  The  situs  of  negotiable  paper  deserves  special 
notice.  So  far  as  the  maker  of  a  negotiable  note  is  concerned, 
the  locus  celebrationis  and  the  locus  solutionis  of  his  contract 
are  to  be  ascertained  in  accordance  with  the  principles  men- 
tioned in  the  preceding  sections.^  There  is  no  difference  in 
this  respect  between  the  maker  of  a  negotiable  note  and  the 
maker  of  any  other  contract  to  pay  money. 

The  locus  celebrationis  of  the  contract  of  an  acceptor  of  a  bill 
of  exchange  is  of  course  the  place  where  his  acceptance  becomes 
complete  and  finally  binding  upon  him.  This  will  usually  be 
the  place  where  the  acceptance  is  given.  But  if  the  acceptance 
is  for  the  purpose  of  negotiation  in  another  State,  the  bill  being 
subsequently  sent  thither  for  that  purpose,  the  locus  celebra- 
tionis of  the  contract  of  acceptance  is  the  State  where  such 
negotiation  takes  place,  for  only  upon  its  delivery  to  the  holder 
does  the  acceptance  become  obligatory.^  And  if  the  acceptance 
be  made  through  an  agent,  the  place  where  the  agent  acts  (if 
he  has  plenary  authority)  will  be  the  locus  celebrationis  of  the 
principal's  contract.' 

The  locus  solutionis  of  an  acceptor's  contract  depends  prima- 
rily, as  in  other  cases,  upon  the  intention.  If  the  acceptor 
names  in  his  acceptance  the  place  where  he  proposes  to  pay,  or 
if,  in  the  event  of  his  silence,  the  bill  designates  a  place  of  pay- 
ment, that  place  will  be  the  locus  solutionis  of  his  contract. 

11  Crumlish  v.  Cent.  Imp.  Co.,  38  W.  Va.  390,  18  S.  E.  456;  Grant  v. 
Healy,  3  Sumner  (U.  S.),  523.  See  Porter  v.  Price,  49  U.  S.  App.  295,  80 
Fed.  655  ;  Lanusse  v.  Barker,  3  Wheat.  101  ;  Merchants'  Bank  v.  Griswold, 
72  N.  Y.  472,  28  Am.  Rep.  159. 

1  Ante,  §§  157,  158,  163. 

2  TUden  v.  Blair,  21  Wall.  241,  247  ;  Hall  v.  Cordell,  142  U.  S.  118  ; 
Farmers*  Nat.  Bank  v.  Sutton,  3  C.  C.  A.  1,  52  Fed.  191 ;  Merchants'  Bank  v. 
Griswold,  72  N.  Y.  472,  481,  28  Am.  Rep.  159  ;  Lennig  v.  Ralston,  23  Peim. 
St.  137.    This  applies  also  to  the  contract  of  the  maker  of  a  note. 

»  Scudder  v.  Bank,  91  17.  S.  406 ;  ante,  §  158. 


392  SITUS  OF  indorsee's  or  drawer's  contract.   §  165 

But  in  the  absence  of  such  controlling  circumstances,  the  gen- 
eral rule  is  that  the  locus  solutionis  of  the  acceptor's  contract 
will  be  his  place  of  residence  or  business,  or  his  address  on  the 
face  of  the  bill.* 

A  contract  to  accept  a  bill  or  draft  is  usually  regarded  as  an 
actual  acceptance  thereof,  as  against  a  bona  fide  holder,  unless  a 
specific  place  for  the  future  acceptance  of  the  bill  is  designated.* 
But  as  between  the  original  parties,  it  is  an  ordinary  contract, 
and  governed  by  the  same  rules.* 

§  165.  Indorser'B  or  Drawer's  Contract.  —  Upon  the  iudorse- 
ment  of  a  bill  or  note,  the  indorser  enters  into  a  new  contract,  col- 
lateral to  and  distinct  from  the  original  contract  of  the  maker  or 
acceptor.*  Indeed  the  contract  of  indorsement  (unless  it  be  merely 
for  accommodation)  comprises  two  distinct  contracts,  one  of  which 
is  an  executed  assignment,  operating  to  transfer  to  the  indorsee 
such  title  to  the  chose  in  action  as  the  indorser  possesses,  and 
such  rights  as  he  has  against  prior  parties  to  the  note  or  bill, 
and  the  other  an  executory  contract,  by  which  the  indorser  under- 
takes that  the  bill  or  note  shall  be  paid  at  maturity. 

So  far  as  concerns  the  executed  transfer  represented  by  the 
indorsement,  it  is  an  instance  of  the  voluntary  transfer  of  per- 
sonal property,  the  "proper  law"  to  govern  which  we  have  seen 
to  be  the  law  of  the  place  where  the  transfer  is  made  (lex  loci 
contractus).'     The  nature  of  the  title  in  the  indorsee  is  deter- 

«  Lebel  v.  Tucker,  L.  R.  3  Q.  B.  77  ;  Scudder  v.  Bank,  91  U.  S.  406,  413  ; 
Freese  v.  Brownell,  35  N.  J.  L.  285,  10  Am.  Rep.  239  ;  CoflFman  v.  Bank,  41 
Miss,  212,  90  Am.  Dec.  371 ;  Hunt  v.  Standart,  15  Ind.  33,  77  Am.  Dec.  79, 
86  ;  Worcester  Bank  v.  Wells,  8  Met.  (Mass.)  107. 

6  Scudder  v.  Bank,  91  U.  S.  406  ;  Hubbard  v.  Exchange  Bank,  18  C.  C.  A. 
526,  72  Fed.  234 ;  Exchange  Bank  v.  Hubbard,  10  C.  C.  A.  295,  62  Fed.  112 ; 
Garrettson  v.  Bank,  47  Fed.  867  ;  Merchants'  Bank  v.  Griswold,  72  N.  Y.  472, 
28  Am.  Rep.  159  ;  Carnegie  v.  Morrison,  2  Met.  (Mass.)  381,  398,  400. 

«  Hall  V.  Cordell,  142  U.  S.  116. 

1  Home  17.  Rouquette,  3  Q.  B.  Dir,  514,  28  Eng,  Rep.  424;  Aymar  w. 
Sheldon,  12  Wend.  (N.  Y.)  439,  443,  27  Am.  Dec  137  ;  Everett  v.  Vendryes, 
19  N.  Y.  436,  437;  Freese  v.  Brownell,  35  N.J.  L.  285, 10  Am.  Rep.  239,  241; 
Nichols  V.  Bank,  2  W.  Va.  13,  94  Am.  Dec.  501;  Felch  v.  Bugbee,  48  Me,  9, 
77  Am.  Dec.  203  ;  Stubbs  v.  Colt,  30  Fed.  417,  419. 

*  Ante,  §§  122,  128  et  seq.  But  in  favor  of  creditors,  and  other  third 
persons,  it  will  be  remembered,  the  lex  fori  is  frequently  substituted. 


§  165  SITUS  OP  indorser's  or  drawer's  contract.    393 

mined  by  the  law  of  the  place  of  indorsement,  and  this  ap- 
plies equally  to  other  choses  in  action  as  well  as  to  negotiable 
instruments. 

Hence  the  right  of  the  indorsee  as  holder  of  a  note  or  bill,  or 
of  the  assignee  of  any  chose  in  action,  to  sue  the  original  prom- 
isors, and  the  nature  and  extent  of  his  claim  against  them,  will 
depend  upon  the  law  governing  the  indorsement  or  assignment 
under  which  he  holds.  If  the  law  of  the  place  of  the  transfer 
confers  upon  the  assignee  the  legal  title  to  the  chose  in  action, 
so  that  he  may  there  sue  the  original  promisors  at  law  in  his  own 
name,  the  same  results  will  follow  everywhere,  even  in  States 
by  whose  law,  if  the  transfer  had  taken  place  there,  only  an  equi- 
table title  would  have  passed  to  the  assignee.® 

Thus,  in  Levy  v.  Levy,*  an  assignment  was  made  in  New 
York  of  a  chose  in  action,  which  by  the  law  of  New  York  vested 
the  legal  title  in  the  assignee,  with  the  incidental  right  to  sue 
upon  it  in  a  court  of  law  in  his  own  name.  By  the  law  of  Penn- 
sylvania (the  forum)  the  assignment,  if  made  there,  would  have 
vested  only  an  equitable  title  in  the  assignee,  who  could  have 
sued  in  a  court  of  law  only  in  the  name  of  his  assignor.  The 
Pennsylvania  court  held  that,  the  law  of  New  York  (lex  loci  con- 
tractus) having  conferred  upon  the  assignee  the  legal  title,  he 
was  entitled  to  sue  the  promisor  in  his  own  name  in  Pennsyl- 
vania. The  court  admitted  that  if  the  law  of  New  York  had 
merely  given  the  assignee  the  right  to  sue  at  law  in  his  own 
name,  without  conferring  upon  him  the  legal  title,  this  would 
not  have  sufficed  to  sustain  an  action  in  Pennsylvania  in  his  own 
name,  since  this,  standing  alone,  would  be  merely  a  matter  per- 
taining to  the  remedy,  to  be  controlled  by  the  lex  fori.® 

So,  the  indorsee  or  holder  of  a  bill  or  note  succeeds  to  the 
rights  of  his  assignor  against  the  prior  indorsers  to  the  extent 

3  See  Brabston  v.  Gibson,  9  How.  263  ;  Trimbey  v.  Vignier,  1  Bing.  n.  c. 
151,  27  E.  C.  L.  336  ;  Bradlaugh  v.  De  Rin,  L.  R.  5  C.  P.  473 ;  Home  v. 
Rouquette,  3  Q.  B.  Div.  514,  517,  28  Eng.  Rep.  424  ;  Brook  v.  Van  Nest,  58 
N.  J.  L.  162,  33  Atl.  382. 

♦  78  Penn.  St.  507,  21  Am.  Rep.  35.  See  also  Jordan  v.  Thornton,  2  Engi 
(Ark.)  224,  44  Am.  Dec.  546,  548. 

6  Post,  §  206. 


394  SITUS  OF  indorseb's  or  drawer's  contract.   §  165 

permitted  by  the  law  of  the  place  where  the  transfer  to  him  is 
made,  and  no  further.  But  since  his  assignor  can  hold  each  ia- 
dorser  only  upon  his  independent  collateral  contract  of  indorse- 
ment, and  the  liability  of  each  such  indorser  depends  upon  the 
'  *  proper  law  "  governing  his  particular  contract  of  indorsement, 
it  follows  that  the  rights  of  the  indorsee  or  holder  against  such 
prior  indorsers  will  also  depend  upon  the  "proper  law"  of  the 
executory  contract  of  indorsement  made  by  the  particular  in- 
dorser whom  he  seeks  to  hold  liable.* 

This  brings  us  to  the  consideration  of  the  second  contract,  — 
the  executory  contract,  —  created  by  the  act  of  indorsement. 
This  contract  is  in  the  nature  of  a  contract  of  guaranty,  an  un- 
dertaking that  the  bill  or  note  will  be  paid  when  properly  pre- 
sented at  maturity.  Being  an  executory  contract,  it  may  have 
a  locus  solutionis  distinct  from  the  locus  celebrationis. 

Little  difficulty  is  usually  experienced  in  ascertaining  the  locus 
celebrationis  of  the  contract.  The  place  where  the  indorser  puts 
his  name  on  the  paper  will  ordinarily  be  the  place  where  his  con- 
tract is  entered  into.'  But  it  is  not  the  mere  putting  of  his 
name  upon  the  paper  that  constitutes  the  indorsement.  It  does 
not  usually  take  effect,  either  as  an  executed  or  executory  con- 
tract, until  the  note  so  indorsed  is  delivered  to  the  indorsee  or 
holder.  The  place  where  the  note  is  actually  indorsed  is  imma- 
terial if  the  delivery  or  transfer  occurs  elsewhere.^ 

«  Carlisle  v.  Chambers,  4  Bush  (Ky.),  272,  96  Am.  Dec.  304 ;  Bradlaugh  v. 
De  Kin,  L.  R.  5  C.  P.  473.  See  Home  v.  Rouquette,  3  Q.  B.  Div.  514,  517, 
28  Eng.  Rep.  424 ;  Trimbey  v.  Vignier,  1  Bing.  N.  c.  151.  See  Everett  v. 
Vendryes,  19  N.  Y.  436  ;  Reddick  v.  Jones,  6  Ired.  L.  (N.  C.)  107,  44  Am. 
Dec.  68 ;  Lebel  v.  Tucker,  L.  R.  3  Q.  B.  77,  83.  This  matter  is  discussed 
more  at  length  hereafter.     Post,  §  182. 

"<  Young  V.  Harris,  14  B.  Mon.  (Ky.)  556,  61  Am.  Dec.  170 ;  Douglas  v. 
Bank,  97  Tenn.  133,  36  S.  W.  874,  876  ;  Brook  v.  Van  Nest,  58  N.  J.  L.  162, 
83  Atl.  382. 

8  Fant  r.  Miller,  17  Gratt.  (Va.)  47;  Rose  v.  Bank,  20  Ind.  94,  83  Am. 
Dec.  306 ;  Gay  v.  Rainey,  89  111.  221,  31  Am.  Rep.  76  ;  Young  r.  Harris,  14 
B.  Mon.  (Ky.)  556,  61  Am.  Dec.  170,  171  ;  Briggs  v.  Latham,  36  Kan.  255, 
59  Am.  Rep.  546, 13  Pac.  393  ;  Carnegie  Steel  Co.  v.  Construction  Co.  (Tenn.), 
38  S.  W.  102,  103;  Stanford  v.  Pruet,  27  Ga.  243,  73  Am.  Dec.  734; 
Dunscomb  v.  Bunker,  2  Met.  (Mass.)  8 ;  Lee  r.  Selleck,  83  N.  Y.  616,  618; 
Cook  V.  Litchfield,  9  N.  Y.  379 ;  Stubh*  v.  Colt,  80  Fed.  417. 


§  165    SITUS  OF  INDOBSBB'S  OB  DBAWBR'S  CONTBACT.    Z% 

Bo,  if  the  indorsemeut  be  for  accommodation  merely,  the  notd 
or  bill  being  sent  or  taken  to  another  State  for  negotiation,  the 
indorsement  does  not  become  binding  upon  the  accommodation 
indorser  until  the  negotiation  occurs.  The  place  at  which  the 
note  goes  into  the  hands  of  a  holder  for  value  is  in  such  case 
the  locus  celebrationis  of  the  indorser's  contract." 

With  respect  to  the  locus  solutionis  of  the  executory  contract 
of  indorsement,  the  views  of  the  authorities  are  conflicting.  Of 
course  no  difficulty  will  arise  if  the  indorser  names  in  his  in- 
dorsement the  place  where  he  undertakes  to  pay  should  such  a 
course  become  necessary.  But  this  is  rarely  done.  Usually  the 
indorsement  is  silent  upon  this  point. 

Although  the  general  rule  is  that,  if  the  contract  designates 
no  place  of  performance,  the  locus  solutionis  will  coincide  with 
the  locus  celebrationis,  it  will  be  remembered  that  this  is 
founded  merely  upon  the  presumption  of  the  intent  and  pur- 
pose of  the  parties,  and  may  yield  to  evidence  or  inference  of 
some  other  intent. 

The  locus  solutionis  of  a  contract  of  indorsement  depends 
upon  the  exact  character  of  the  promise  implied  from  the  in- 
dorsement. We  have  seen  that  it  constitutes  an  undertaking 
on  the  part  of  the  indorser  that  the  bill  or  note  will  be  paid  upon 
proper  presentment  at  maturity.  But  is  the  indorsement  a  con- 
ditional promise  by  the  indorser  to  pay  generally,  or  at  the  place 
where  he  makes  the  promise,  or  is  it  a  promise  to  pay  at  the 
place  where  the  money  should  have  been  paid  at  maturity,  that 
is,  at  the  locus  solutionis  of  the  bill  or  note  ? 

Upon  the  answer  to  these  questions  depends  the  locus  solu- 
tionis of  the  contract  of  indorsement.  And  it  is  a  very  impor- 
tant point  to  determine,  for  the  lex  solutionis  of  his  contrac*^ 
will  generally  regulate  the  rights  and  duties  of  the  indorser 
with  respect  to  all  matters  connected  with  the  performance  of 
his  contract. 

Many  of  the  authorities  follow  the  general  rule  and  hold  that 
the  locus  solutionis  of  the  contract  of  indorsement,  no  special 
place  of  performance  being  named,  is  identical  with  the  locus 

•  See  cases  cited  in  note  8,  svpra. 


396  SITUS  OF  indouser's  or  drawer's  contract,   §  165 

celebrationis.  These  go  upon  the  theory  that  the  contract  of 
the  indorser  is  to  pay  the  bill  or  note  generally,  if  at  all,  that 
is,  at  the  place  where  he  indorses.^** 

Others  hold  that  the  indorser's  contract  is  to  make  good  the 
bill  or  note  at  the  place  where  it  was  originally  designed  to  be 
paid,  and  that  that  place  therefore  is  the  locus  solutionis  of  the 
indorsement.^^ 

Expediency  would  seem  to  pronounce  in  favor  of  the  latter 
view,  and  it  is  believed  to  be  the  better.  To  give  every  in- 
dorsement its  own  separate  locality  would  impair  most  seriously 
the  value  of  all  negotiable  instruments,  even  those  which  are  in 
fact  purely  domestic,  since  the  holder  could  not  know  where  the 
prior  indorsements  were  made  and  hence  could  not  tell  what  the 
liabilities  of  the  prior  indorsers  are,  nor  what  steps  he  must  take 
to  secure  that  liability.  The  tendency  of  this  rule  is  to  destroy 
or  impair  the  negotiability  of  such  instruments.  On  the  other 
hand,  to  hold  the  locus  solutionis  of  each  indorsement  to  be  iden- 
tical with  the  locus  solutionis  of  the  original  contract  creates  one 
single  law  by  which  the  liabilities  of  all  the  indorsers  are  to  be 
ascertained,  and  would  prevent  the  inconvenience  (to  use  a  mild 
term)  to  the  holder  of  having  to  ascertain  and  comply  with  a 
number  of  different  laws  as  to  protest,  notice  of  dishonor,  and 
other  steps  to  be  taken  in  order  to  fasten  responsibility  upon 
the  indorsers.^* 

10  Story,  Confl.  L.  §  314 ;  Home  v.  Rouquette,  3  Q.  B.  Div.  514,  28  Eng. 
Rep.  424  ;  Musson  v.  Lake,  4  How.  262  ;  Hunt  v.  Standart,  15  Ind.  33,  77 
Am.  Dec.  79,  84 ;  Park  i'.  Rose  Bank,  20  Ind.  94,  83  Am.  Dec.  306  ;  Aymar 
V.  Sheldon,  12  Wend.  (N.  Y.)  439,  443,  27  Am.  Dec.  137  ;  Hicks  v.  Brown, 
12  Johns.  (N.  Y.)  142  ;  Kuenzi  v.  Elvers,  14  La.  Ann.  391,  74  Am.  Dec.  434  ; 
Powers  V.  Lynch,  3  Mass.  77  ;  "Williams  v.  Wade,  1  Met.  (Mass.)  82;  Douglas 
V.  Bank,  97  Tenn.  133,  36  S.  W.  874  ;  Huse  v.  Hamblin,  29  la.  501,  4  Am. 
Rep.  244. 

11  Hirschfield  v.  Smith,  L.  R.  1  C.  P.  340 ;  Rothschild  v.  Currie,  1  Q.  B. 
43,  1  Ad."&  El.  N.  s.  43;  Hibernia  Nat.  Bank  v.  Lacombe,  84  N.  Y.  367  ; 
Everett  v.  Vendryes,  19  N.  Y.  436  ;  Wooley  v.  Lyon,  117  111.  244,  57  Am. 
Rep.  867  ;  Peck  v.  Mayo,  14  Vt.  33,  39  Am.  Dec.  205 ;  Carnegie  Steel  Co.  v. 
Construction  Co.  (Tenn.),  38  S.  W.  102  ;  Pierce  v.  Indseth,  106  U.  S.  546, 
550. 

«  Hirschfield  v  Smith,  L.  R.  1  C.  P.  340,  352. 


§  165  SITUS  OP  indorsee's  ok  DBA  wee's  conteact.  397 

The  contract  of  the  drawer  of  a  bill  is  practically  the  same  as 
that  of  an  indorser.  He  undertakes  that  the  drawee  will  accept 
the  bill  when  presented  and  that  he  will  pay  it  at  maturity  upon 
due  presentment ;  and  that  if  the  drawee  does  not  accept,  or  does 
not  pay  at  maturity,  he  (the  drawer)  will  upon  due  notice  pay 
the  amount  named  in  the  bill,  with  such  damages  as  may  result 
from  non-payment. 

The  locus  celebrationis  of  this  contract  of  the  drawer  is  mani- 
festly in  general  the  place  where  the  bill  is  drawn,  just  as  in  a 
corresponding  case  the  locus  celebrationis  of  the  indorser's  con- 
tract is  usually  the  place  where  the  bill  or  note  is  indorsed.  And 
the  same  qualifications  are  to  be  noted  here  as  in  the  case  of  the 
indorser.^' 

With  respect  to  the  locus  solutionis  of  the  drawer's  contract, 
the  same  diversity  of  opinion  exists  as  in  the  corresponding  case 
of  the  indorser's  contract.  Although  there  is  strong  authority 
to  the  effect  that  the  undertaking  of  the  drawer  is  to  make  good 
the  bill  at  the  place  where  he  draws  it,^*  the  better  opinion  is 
believed  to  be  that  the  drawer  undertakes  to  make  good  the  bill 
at  the  place  where  it  is  payable."  It  is  to  be  observed  that  there 
is  this  difference  between  the  contract  of  the  indorser  and  that 
of  the  drawer.  The  former  becomes  a  party  to  a  transaction  in 
the  creation  of  which  he  has  no  part,  while  the  drawer  himself 

w  Aymar  v.  Sheldon,  12  Wend.  (N.  Y.)  439,  443,  27  Am.  Dec.  137 ; 
Everett  v.  Vendryes,  19  N.  Y.  436 ;  Ereese  v.  Brownell,  35  N.  J.  L.  285,  10 
Am.  Rep.  239  ;  Hunt  v.  Standart,  15  Ind.  33,  77  Am.  Dec.  79.  But  see 
Strawbridge  v.  Robinson,  5  Gilm.  (111.)  470,  50  Am.  Dec.  420,  where  the 
court  solemnly  decides  that  a  bill  which  is  actually  drawn  in  one  State  was 
drawn  in  another,  because  the  parties  intended  that  it  should  be  so. 

"  Freese  v.  Brownell,  35  N.  J.  L.  285,  10  Am.  Rep.  239 ;  Hunt  v.  Standart, 
15  Ind,  33,  77  Am.  Dec.  79  ;  Briggs  v.  Latham,  36  Kan.  255,  59  Am.  Rep. 
546,  547  ;  Crawford  v.  Bank,  6  Ala.  12,  41  Am.  Dec.  33 ;  Kuenzi  v.  Elvers, 
14  La.  Ann.  391,  74  Am.  Dec.  434 ;  Hicks  v.  Brown,  12  Johns.  (N.  Y.)  142. 

^  Hibemia  Nat.  Bank  v.  Lacombe,  84  N.  Y.  367  ;  Everett  v.  Vendryes,  19 
N.  Y.  436  ;  Aymar  v.  Sheldon,  12  Wend.  (N.  Y.)  439,  27  Am.  Dec.  137; 
CoflFman  v.  Bank,  41  Miss.  212,  90  Am.  Dec.  371  ;  Abt  v.  Bank,  159  111.  467, 
42  N".  E.  856  ;  National  Bank  of  America  v.  Indiana  Banking  Co.,  114  111. 
483,  2  N.  E.  401.  See  Wooley  v.  Lyon,  117  111.  244,  57  Am.  Rep,  867  ; 
Hirschfield  v.  Smith,  L.  R.  1  C,  P,  340 ;  Rouquette  v.  Overmann,  L.  R.  10 
Q.  B.  525. 


398  SITUS   OP   INSURANCE   CONTRACTS.  §  16ft 

draws  the  original  contract,  and  may  make  it  payable  where  he 
chooses.  Hence,  much  more  in  the  case  of  the  drawer  than  in 
that  of  the  indorser  ought  the  locus  solutionis  of  his  contract 
to  be  the  place  where  the  bill  is  payable  or  upon  which  it  is 
drawn." 

§  166.  Sitns  of  InBureince  Contracts.  —  If  a  place  is  desig- 
nated for  the  payment  of  the  money  due  upon  a  policy  of  insur- 
ance (as  at  the  principal  office  of  the  company,  etc.),  there  will 
be  no  difficulty  in  fixing  upon  that  place  as  the  locus  solutionis 
of  the  insurance  contract.  Frequently,  however,  contracts  of 
insurance  are  general  in  character,  designating  no  particular 
place  for  the  payment  of  the  policy.  The  locus  solutionis  will 
then  be  generally  presumed  to  be  identical  with  the  locus 
celebrationis.* 

But  it  is  by  no  means  always  easy  to  ascertain  the  locus  cele- 
brationis of  an  insurance  contract.  The  general  principle  is 
still  the  same,  namely,  that  the  place  where  the  last  act  is  done 
that  is  necessary  to  make  the  contract  complete  and  binding  is 
the  locus  celebrationis.^ 

Thus  if  the  agreement  is  that  the  policy  becomes  binding 
upon  the  insurance  company  as  soon  as  it  is  issued,  or  upon  its 
approval  of  the  application  of  the  insured,  the  place  where  such 
issuance  or  approval  occurs  is  the  locus  celebrationis  of  the 
contract.' 

16  See  Aymar  v.  Sheldon,  12  Wend.  (N,  Y.)  439,  27  Am.  Dec.  137  ;  Everett 
V.  Veiidryes,  19  N.  Y.  436  ;  Powers  v.  Lynch,  3  Mass.  77. 

1  Seamans  v.  Knapp  Co.,  89  Wis.  171,  27  L.  R.  A.  362.  This  is  the  better 
view,  though  tne  authorities  are  divided.  Some  have  held,  in  the  case  of  fire 
insurance  upon  buildings,  that  the  situs  of  the  land  is  the  locus  solutionis  of 
the  insurance  policy.  See  Gibson  v.  Ins.  Co.,  77  Fed.  561,  564.  Others  have 
held,  in  case  of  fire  policies  upon  personal  property,  and  life  policies,  that  the 
domicil  of  the  owner  or  beneficiary  is  the  locus  solutionis  of  the  contract.  See 
Knights  Templars  Ass'n  v.  Greene,  79  Fed.  461  ;  Fletcher  v.  Ins.  Co.,  13  Fed. 
526  ;  Wood  v.  Ins.  Co.,  8  Wash.  427,  36  Pac.  267. 

«  See  Ford  v.  Ins.  Co.,  6  Bush  (Ky.),  133,  99  Am.  Dec.  663. 

»  Equitable,  etc.  Soc.  v.  Trimble,  27  C.  C.  A.  404,  83  Fed.  85  ;  Equitable, 
etc.  Soc.  V.  Nixon,  26  C.  C.  A.  620,  81  Fed.  796  ;  Voorheis  v.  Society,  91  Mich. 
469,  51  N.  W.  1109  ;  Seamans  v.  Knapp  Co.,  89  Wis.  171,  27  L.  R.  A.  362 ; 
State,  etc.  Ins.  Co.  v.  Brinkley  Co.,  61  Ark.  1,  29  L.  R.  A.  712;  Hyde  v. 
Goodnow,  3  N.  Y.  266,  270. 


§  166  SITUS   OP  INSURANCE   CONTRACTS.  399 

If  the  actual  or  constructive  delivery  of  the  policy  to  the  in- 
lured  is  necessary  in  order  to  make  the  contract  binding  upon 
the  insurance  company,  the  place  where  such  delivery  takes 
place  will  be  the  locus  celebrationis  of  the  contract.*  A  dis- 
tinction may  perhaps  be  taken  here  between  the  case  where  the 
insurance  company  sends  its  policy  directly  to  the  applicant  by 
mail,  in  which  case  the  delivery  will  occur  where  the  policy  is 
mailed,  and  the  case  where  the  company  mails  the  policy  to  a 
third  person  in  the  State  of  the  applicant,  to  be  by  him  deliv- 
ered to  the  insured,  in  which  case  the  delivery  takes  place  and 
the  insurance  contract  is  entered  into  in  the  latter  State.' 

Again,  the  payment  of  the  first  premium  is  often,  by  the  terms 
of  the  agreement,  made  the  event  upon  which  the  policy  is  to 
become  binding.  In  such  case,  the  place  where  the  premium  is 
paid  is  the  locus  celebrationis  of  the  insurance  contract.'  And 
upon  the  same  principle,  if  it  is  provided  that  the  policy  is  not 
to  be  binding  until  countersigned  by  an  agent,  or  until  some 
other  act  is  done,  the  State  where  such  final  act  is  performed  is 
the  locus  celebrationis  of  the  contract.^ 

The  contract  by  which  the  beneficiary  of  an  insurance  policy 
assigns  his  interest  to  a  third  person  is  of  course  entirely  dis- 
tinct from  the  contract  of  insurance  itself.  The  assignment  is 
an  executed  contract,  and  the  law  of  the  place  where  the  assign- 
ment is  made  and  completed  (lex  loci  contractus)  is  the  proper 

*  Equitable,  etc.  Society  v.  Clements,  140  U.  S.  226  ;  Hicks  v.  Ins.  Co., 
9  C.  C.  A.  215,  60  Fed.  690 ;  Knights  Templar  Co.  v.  Berry,  1  C.  C.  A.  561, 
60  Fed.  511  ;  Wood  v.  Ins.  Co.,  8  Wash.  427,  36  Pac.  267  ;  In  re  Breitung, 
78  Wis.  33,  46  N.  W.  891 ;  Perry  v.  Ins.  Co.,  67  N.  H.  291,  33  Atl.  731. 

5  See  Equitable,  etc.  Society  v.  Clements,  140  U.  S.  226;  State  Ins.  Co.  v, 
Brinkley  Co.,  61  Ark.  1,  29  L.  R.  A.  712.  If  the  insured  is  notified  by  letter 
or  otherwise  that  his  application  has  been  accepted,  the  contract  is  thereby 
completed,  and  the  place  of  the  deliveiy  of  the  policy  is  immateriaL  See 
Perry  v.  Ins.  Co.,  67  N.  H.  291,  33  Atl.  731. 

8  Equitable,  etc.  Society  v.  Clements,  140  U.  S.  226  ;  Hicks  v.  Ins.  Co.,  9  C. 
C.  A.  215,  60  Fed.  690;  Mut.  Ben.L.  Ins.  Co.  v.  Robison,  54  Fed.  580,  583  ; 
Harden  v.  Ins.  Co.,  85  la.  584,  52  N.  W.  509  ;  Ford  v.  Ins.  Co.,  6  Bush 
(Ky.),  133,  99  Am.  Dec.  663. 

'  Heebner  v.  Ins.  Co.,  10  Gray  (Mass.),  131  ;  In  re  Breitung,  78  Wis. 
33,  46  N.  W.  891 ;  Gibson  v.  Ins.  Co.,  77  Fed.  561,  563.  See  State  Ins.  Co. 
V.  Brinkley  Co.,  61  Ark.  1,  29  L.  R.  A.  712. 


400  SITUS   OF   INSURANCE   CONTRACTS.  §  166 

law  to  regulate  it.  Thus,  in  Miller  v.  Campbell,'  it  was  held 
that  a  married  woman,  who  was  the  beneficiary  of  a  Massachu- 
setts policy  of  insurance,  could  not  assign  her  interest  therein  in 
New  York,  though  the  law  of  Massachusetts  permitted  it. 

In  a  Wisconsin  case,'  the  question  was  whether  a  person  who 
had  procured  a  policy  of  insurance  on  his  own  life  for  the  benefit 
of  another  and  had  paid  the  premiums  thereon,  might  dispose  of 
the  insurance  by  will  or  otherwise  to  the  exclusion  of  the  bene- 
ficiary designated  in  the  policj'^.  By  the  law  of  Wisconsin  he 
could  do  so,  and  that  law  was  held  to  govern  the  assignment 
(which  was  made  there),  though  the  insurer  was  a  Massachu- 
setts corporation,  and  by  Massachusetts  law  such  an  assignment 
could  not  be  made.^° 

8  140  N.  Y.  457,  35  N.  E.  65. 

9  In  re  Breitung,  78  "Wis.  33,  46  N.  W.  891. 

^^  In  this  case  the  court  held  that  the  contract  of  insurance  also  was  made 
in  Wisconsin,  and  seems  to  have  based  its  decision  largely  on  that  fact.  The 
capacity  of  the  insured  to  make  the  assignment  in  question  may  probably  be 
regarded  as  a  part  of  the  obligation  of  the  contract  of  insurance,  and  as  such 
(in  this  peculiar  instance)  to  be  governed  by  the  lex  celebrationis  of  the  con- 
tract ;  though  in  general  the  lex  solutionis  of  the  contract  governs  the  obliga- 
tion thereof,  in  the  absence  of  evidence  that  the  parties  contracted  with 
reference  to  any  other  law.  The  report  does  not  show  where  the  policy  was 
payable  (locus  solutionis).  The  obligation  (apart  from  the  validity)  of  a  con- 
ti'act  depends  upon  "the  law  in  the  minds  of  the  parties."    Post,  §  181. 


§  167  VALIDITY   OF   CONTRACTS.  401 


CHAPTER  XVII. 

VALIDITY  OF  CONTRACTS. 

§  167.  Preliminary.  —  The  validity  of  a  contract  is  very  dis- 
tinct from  its  obligation,  its  interpretation,  or  its  discharge. 
The  last  three  matters  are  reserved  for  future  discussion.  This 
chapter  will  be  devoted  to  an  examination  of  the  "  proper  law  " 
governing  the  validity  of  a  contract. 

It  will  be  remembered  that  although  sometimes  the  * '  proper 
law  "  governing  a  contract  in  some  of  its  aspects  is  "  the  law  in 
the  minds  of  the  parties, "  irrespective  of  situs,^  a  different  rule 
applies  to  questions  of  the  validity  of  the  contract.  The  design 
or  purpose  of  the  parties  to  enter  into  a  valid  contract,  standing 
alone,  can  never  suffice  to  validate  a  contract  prohibited  by  the 
law,  nor  to  invalidate  (except  by  mutual  rescission)  a  contract 
not  legally  prohibited.  It  is  true  that  where  the  intent  of  the 
parties  is  doubtful  and  susceptible  of  several  interpretations,  ac- 
cording to  one  of  which  the  contract  would  be  legal  and  accord- 
ing to  the  other  illegal,  that  interpretation  will  be  given  to  the 
terms  used  which  will  give  rise  to  a  lawful,  rather  than  to  an  un- 
lawful, contract.  But  if  there  is  no  ambiguity,  and  it  is  clear 
that  the  parties  intend  to  enter  into  a  contract  which  the  law  in- 
validates, their  innocence  of  design  to  violate  the  law  is  entirely 
immaterial,  except  in  the  few  cases  where  it  is  the  guilty  intent 
alone  which  invalidates.* 

The  question  therefore,  where  the  validity  of  the  contract  is 
under  investigation,  is  not  what  law  do  the  parties  intend  shall 
govern  a  particular  element,  but  what  law  shall  actually  govern 
it.     The  answer  is  that  the  validity  of  the  contract,  in  respect 

1  That  is,  when  the  maxim,  "  modus  et  conventto  legem  vincwnt,"  is  appli- 
cable to  the  question.  Ante,  §  154.  See  Pope  r.  Nickerson,  3  Story,  465, 
484. 

'  Ante,  §  154  ;  Pope  v.  Nickerson,  3  Story,  465,  484. 

26 


402  CONTRACT   VOID    IN   THE   MAKING.  §  168 

to  each  of  its  elements,  is  to  be  controlled  by  the  law  of  the 
situs  of  that  element  ;  by  the  lex  loci  celebrationis,  if  the  ele- 
ment in  question  relates  to  the  making  of  the  contract ;  by  the 
lex  loci  solutionis,  if  it  relates  to  the  performance  of  it ;  and  by 
the  lex  loci  considerationis,  if  it  is  the  consideration  of  the  con- 
tract whose  sufficiency  or  legality  is  disputed. 

For  the  purposes  of  this  discussion,  an  executory  contract  may 
be  defined  as  <*  a  mutual  agreement,  not  prohibited  by  law  to  be 
entered  into,  between  two  or  more  legally  competent  persons, 
made  in  due  legal  form,  touching  a  lawful  subject-matter,  for  a 
legal  consideration." 

A  careful  examination  of  this  definition  will  show  that  a 
contract  in  its  very  nature  must  come  into  contact  with  legal 
restrictions  at  no  less  than  five  points.  (1)  The  contract  must 
not  be  one  the  entrance  into  which  the  law  prohibits ;  (2)  The 
parties  must  be  legally  competent  to  contract  (which  is  really 
part  of  the  first  proposition) ;  (3)  The  contract  must  be  in  the 
form,  if  any,  required  by  law  (another  branch  of  the  first 
proposition)  ;  (4)  The  thing  agreed  to  be  done  under  the  con- 
tract must  be  one  not  prohibited  by  law  ;  (5)  The  consideration 
supporting  the  contract  must  not  be  one  which  the  law  regards 
as  insufficient  or  illegal. 

The  first  three  of  these  heads  relate  to  the  entering  into  the 
contract,  or  the  making  of  it;  the  fourth  relates  to  the perform,- 
ance  oi  the  contract;  and  the  fifth,  to  the  consideration.  All 
these  elements  are  included  in  the  definition  of  a  contract, 
and  if  any  one  of  them  fails  to  measure  up  to  the  standard  re- 
quired by  the  law,  the  contract  must  fall ;  it  is  invalid. 

At  all  these  points  the  contract  comes  into  contact  with 
''law,"  and  must  conform  itself  to  it.  But  the  question  re- 
mains, what  law  ?  Is  it  the  same  law  for  all  these  elements,  or 
may  each  have  a  separate  law  to  govern  its  validity  ?  To  this 
inquiry  we  will  now  address  ourselves. 

§  168.  Contracts  Prohibited  to  be  entered  into  —  In  Gen- 
eral —  Lex  Ijoci  Celebrationis.  —  If  the  alleged  invalidity  of  a 
contract  turns  upon  the  question  whether  the  law  prohibits  the 
contract  to  be  entered  into,  it  is  manifest  that  the  situs  of  this 
element  of  the  contract  is  the  situs  of  the  making  (locus  celebra- 


§  168  CONTRACT   VOID   IN  THE  MAKING.  403 

tionis).  The  act  in  this  case  condemned  by  the  law  is  the  makf 
ing  of  the  contract.  With  this  act  no  State  has  usually  any 
concern  save  the  State  where  the  act  is  done,  that  is,  the  State 
where  the  contract  is  made.  Comity  and  justice  unite  in  de- 
manding that  the  lex  loci  celebrationis  shall  determine  the 
effect  to  be  given  to  the  act  of  entering  into  the  contract, 
and  neither  the  lex  solutionis  nor  the  lex  fori  should  be  per- 
mitted to  supplant  it. 

Excellent  illustrations  of  this  principle  may  be  found  in  the 
case  of  Sunday  contracts.  The  laws  of  some  States  avoid  con- 
tracts made  on  Sunday,  while  other  States  permit  them.  It  is 
well  settled  that  the  lex  loci  celebrationis  will  determine  the 
validity  of  the  contract  in  this  respect.^ 

Thus  in  McKee  v.  Jones,'  suit  was  brought  in  Mississippi 
upon  a  contract  made  in  Louisiana  upon  Sunday.  The  defence 
was  that  contracts  made  on  Sunday  were  void  under  the  law  of 
Mississippi.  But  the  court  sustained  the  contract,  holding  that 
its  validity  in  this  respect  must  be  controlled  by  the  law  of 
Louisiana. 

So  in  Brown  v.  Browning,'  a  Connecticut  statute  prohibited 
secular  business  on  Sunday  between  sunrise  and  sunset.  A 
similar  Rhode  Island  statute  prohibited  business  in  one's  ordi- 
nary calling  during  the  whole  of  Sunday.  It  was  held  by  the 
Rhode  Island  court  that  a  contract  made  in  Connecticut  after 
sunset,  in  the  course  of  the  plaintiff's  ordinary  calling,  might 
be  sued  upon  in  Rhode  Island,  it  not  being  contra  honos  mores, 
nor  invalid  where  made. 

These  conclusions  are  eminently  reasonable.  The  laws  of 
Mississippi  and  of  Rhode  Island  were  aimed  against  acts  done 
in  those  States,  not  against  acts  done  elsewhere.  The  laws  of 
those  States  therefore  were  not  violated  by  these  contracts  en- 
tered into  in  other  States.  As  the  court,  in  Brown  v.  Browning, 
expressed  it:   "  The  contract  was  valid  in  Connecticut,  where  it 

1  McKee  ».  Jones,  67  Miss.  405,  7  So.  348  ;  Brown  v.  Browning,  15  R.  I. 
422,  7  Atl,  403  ;  Swanu  v.  Swann,  21  Fed.  299  ;  Murphy  v.  Collins,  121 
Mass.  6  ;  Arbuckle  v.  Reauine,  96  Mich.  243,  55  N.  W.  808. 

«  67  Miss.  405,  7  So.  348. 

8  15  R.  I.  422,  7  Atl.  403. 


404  CONTRACT   VOID  IN   THE   MAKING.  §  168 

was  made,  because  it  was  not  in  violation  of  the  law  of  that  State. 
The  making  of  the  contract  did  not  violate  the  law  of  this  State, 
because  it  was  not  done  in  this  State."  * 

On  the  other  hand,  in  Arbuckle  v.  Reaume,^  suit  was  brought 
in  Michigan  on  a  note  executed  and  delivered  in  Michigan  on 
Sunday,  but  payable  in  Ohio.  The  court  declared  the  note  void, 
holding  that  the  law  of  Michigan  (lex  celebrationis)  should 
apply,  and  not  the  law  of  Ohio  (lex  solutionis).  In  the  course 
of  its  opinion  the  court  said :  ' '  The  court  below  was  in  error 
in  holding  that  the  note  could  be  enforced  here  by  reason  of  its 
being  made  payable  in  Ohio.  Parties  cannot  be  allowed  to  defy 
our  laws  and  recover  upon  a  contract  void  from  its  inception 
under  our  statute  by  making  the  place  of  payment  outside  the 
State."  « 

Another  application  of  the  same  principles  may  be  seen  in 
connection  with  champertous  contracts.  Champerty  consists 
in  prosecuting  a  suit  upon  shares,  and  is  prohibited  in  some 
States,  while  permitted  in  others.  It  is  the  policy  of  the  State 
where  the  champertous  suit  is  to  be  brought  that  will  usually 
determine  the  effect  of  such  contracts.  Hence  the  general  rule 
is  that  the  validity  of  an  agreement  entered  into  in  one  State 
to  conduct  a  suit  upon  shares  in  another  State  is  to  be  governed 
by  the  lex  solutionis  of  the  agreement,  that  is,  by  the  law  of  the 
place  where  the  champertous  suit  is  to  be  brought.'  Yet,  in 
Blackwell  v.  Webster,^  notwithstanding  this  general  rule,  it  was 
properly  held  that  the  lex  celebrationis,  not  the  lex  solutionis, 

*  The  fact  that  the  lex  loci  solutionis  of  the  contract  would  have  avoided 
it,  if  it  had  been  made  there,  should  not  affect  in  the  slightest  the  operation 
of  the  lex  loci  celebrationis.  Arbuckle  v.  Reaume,  96  Mich.  243,  55  N.  W. 
808.     But  see  Murphy  v.  Collins,  121  Mass.  6. 

6  96  Mich.  243,  55  N.  W.  808. 

•  But,  as  we  shall  presently  see,  if  the  contract  is  to  be  performed  on  Sun- 
day, the  ground  of  its  alleged  invalidity  is  the  performance  on  Sunday.  The 
invalidity  in  such  case,  if  any,  will  relate  not  to  the  mxiMng  of  the  contract, 
but  to  its  performaiux,  and  will  be  governed  by  the  law  of  the  situs  of  the 
performance  (lex  loci  solutionis).  W.  U.  Tel.  Co.  v.  Way,  83  Ala.  642,  4  Sa 
844.     See  Stebbins  v.  Leowolf,  3  Cush.  (Mass.)  137.    Post,  §  176. 

'  Post,  §  175.     See  Hickox  v.  Elliott,  27  Fed.  830. 
«  29  Fed.  614. 


§  169  EXEMPTIONS  IN  BILLS   OP   LADING.  40' 

should  govern  under  the  circumstances  following:  An  agree* 
ment  was  entered  into  in  Maine  to  prosecute  a  suit  upon  shares 
in  New  York.  Such  an  agreement  was  legal  in  New  York  (locus 
solutionis),  but  a  Maine  statute  provided  that  "any  person 
agreeing  to  prosecute  or  defend  a  suit  at  law  or  in  equity  upon 
shares  "  should  be  criminally  punished.  It  was  held  by  a  fed- 
eral court  sitting  in  New  York,  upon  a  suit  brought  to  enforce 
the  champertous  agreement,  that  since  the  law  of  Maine  ex- 
pressly forbade  the  making  of  such  a  contract,  the  law  of  Maine 
(lex  celebrationis)  should  prevail  over  the  law  of  New  York 
(lex  solutionis).  The  court  said:  "  The  validity  of  the  agree- 
ment is  to  be  determined  by  the  law  of  Maine,  and  it  is  void; 
for  the  plaintiff,  when  he  entered  into  the  agreement,  did  an  act 
■made  criminal  by  the  law  of  Maine.  The  statute  of  Maine  for- 
bade the  doing  in  Maine  precisely  what  the  plaintiff  did.  The 
agreement  was  void  at  its  inception,  because  the  making  of  it 
was  made  criminal  by  the  Maine  statute.  .  .  .  But  the  plaintiff 
contends  that  this  contract  was  lawful  because  the  place  of  per- 
formance was  in  New  York.  But  it  seems  to  me  plain  that 
since  the  act  of  making  the  agreement  could  not  be  lawfully 
done  in  Maine,  the  circumstance  that  other  acts  were  intended 
to  be  done  in  New  York  cannot  render  lawful  the  act  that  was 
done  in  Maine." 

So,  though  the  validity  of  contracts  made  in  one  State  to 
purchase  lottery  tickets  in  another  would  ordinarily  be  governed 
by  the  law  of  the  latter  State,  since  the  alleged  invalidity  re- 
lates to  the  performance  of  the  contract  (to  be  controlled  by  the 
lex  solutionis),'  yet  if  the  lex  loci  celebrationis  expressly  for- 
bids contracts  to  be  made  there  for  the  purchase  of  lottery  tickets 
elsewhere,  the  lex  celebrationis  will  govern. ^'^ 

§  169.  Same  —  Ezemptions  in  Bills  of  Lading.  —  It  is  now 
well  established  that  the  validity  of  contracts,  often  found  in 
bills  of  lading,  exempting  carriers  from  liability  for  damage 
resulting  from  the  carrier's  negligence  or  otherwise,  is  to  be 
governed  by  the  law  of  the  place  where  the  contract  of  carriage 

•  Hatch  V.  Hanson,  46  Mo.  App.  323. 

10  Goodrich  V.  Houghton,  134  N.  Y.  115,  31  N.  E.  51«. 


406  EXEMPTIONS   IN  BILLS   OF  LADING.  §  16iJ 

is  entered  into  (lex  celebrationis).  In  some  States,  such  stipu- 
lations are  valid,  in  others  they  are  invalid.  If  the  contract  is 
valid  where  made,  it  will  in  general  be  sustained  even  in  States 
where  such  exemptions  are  looked  upon  as  contrary  to  public 
policy  and  void.^  And,  on  the  other  hand,  if  the  contract  is 
invalid  where  entered  into,  it  will  be  invalid  everywhere.* 

It  is  immaterial  whether  this  result  is  due  to  the  fact  that  the 
question  of  the  validity  of  the  exemption  relates  to  the  making 
of  the  contract  of  carriage,  and  is  for  that  reason  to  be  controlled 
by  the  lex  celebrationis  of  that  contract ;  or  whether  it  is  due 
to  the  fact  that  the  contract  of  exemption,  though  entered  into 
at  the  same  time  as  the  contract  of  carriage,  is  itself  a  distinct 
collateral  contract  executed,  performed  as  soon  as  made,  the 
locus  solutionis  of  which  is  necessarily  identical  with  the  locus 
celebrationis.  It  is  believed  that  the  latter  is  the  true  explana- 
tion. The  fact  remains  that  the  lex  celebrationis  of  the  con- 
tract of  carriage  governs. 

This  rule  applies  not  only  to  exemptions  from  liability  for 
the  negligence  of  the  carrier,  but  also  to  exemptions  from  his 
common  law  liability  as  insurer  also.  Thus,  the  question 
whether  a  carrier  may  exempt  himself  by  public  notice  from 

1  O'Regan  v.  Cunard  S.  S.  Co.,  160  Mass.  356,  35  N.  E.  1070  ;  Fonseca  v. 
Cunard  S,  S,  Co.,  153  Mass.  553,  27  N.  E.  665;  Forepaugh  v.  R.  R.  Co.,  128 
Penn.  St.  217,  18  Atl.  503  ;  Hazel  v.  R.  R.  Co.,  82  la.  477,  48  N.  W.  926  ; 
Talbott  V.  Transportation  Co.,  41  la,  247,  20  Am.  Rep.  589 ;  Meuer  v.  R.  R. 
Co.,  5  So.  Dak.  568,  59  N.  W.  945  ;  Western,  etc.  R.  R.  Co.  v.  Cotton  Mills, 
81  Ga.  522,  7  S.  E.  916  ;  Knowlton  v.  R.  R.  Co.,  19  Ohio  St.  260,  2  Am.  Rep. 
395  ;  Boetjer  v.  La  Compagnie,  59  Fed.  789.  But  see  The  Oranmore,  24  Fed. 
922 ;  The  Guildhall,  58  Fed.  796  ;  The  Glenmavis,  69  Fed.  472;  Burnett  v. 
R.  R.  Co.,  176  Penn.  St.  45,  34  Atl.  972.  In  Knowlton  v.  R.  R.  Co.,  mpra, 
the  passenger  injured  was  travelling  upon  a  free  pass  issued  in  New  York, 
containing  stipulations  exempting  the  carrier  from  liability  for  negligence. 
The  court  sustained  the  exemption  as  valid,  though  invalid  in  Ohio,  because 
valid  by  the  law  of  New  York. 

2  Liverpool  Steam  Co.  v.  Ins.  Co.,  129  U.  S.  397;  The  Majestic,  9  C.  C.  A. 
161,  60  Fed.  624;  Botany  Worsted  Mills  v.  Knott,  76  Fed.  582;  The  Hugo, 
57  Fed.  403  ;  The  Energia,  56  Fed.  124;  Lewisohn  v.  National,  etc.  Co.,  56 
Fed.  602  ;  The  Iowa,  50  Fed.  561  ;  The  Brantford  City,  29  Fed.  373  ;  Brock- 
way  V.  Express  Co.,  168  Mass.  357,  47  N.  K  87;  Davis  v.  R.  R.  Co.,  93  WLi. 
470,  67  N.  W.  16. 


§  170        EXEMPTIONS   IN   INSURANCE  CONTRACTS.  407 

his  liability  as  insurer  is  governed  by  the  lex  celebrationis  oi 
his  contract  of  carriage.'  And  his  right  to  limit  his  common 
law  liability  by  special  contract  is  determined  by  the  same 
law.* 

So  also  the  lex  celebrationis  of  the  contract  of  a  telegraph 
company  governs  the  validity  of  exemptions  contained  therein 
from  liability  for  mistakes  made  in  the  transmission  of  mes- 
sages.* 

The  question  has  also  been  raised  whether  the  same  rule  does 
not  apply  to  the  exemptions  of  an  employer  from  liability  to 
his  employee  for  injuries  inflicted  by  the  negligence  of  fellow- 
servants;  it  being  said  in  such  case  that  the  employer's  liability 
for  such  wrongs  or  his  exemption  therefrom  is  a  part  of  the 
original  contract  of  service.'  But  it  is  believed  that  such  lia- 
bility should  be  treated,  not  as  contractual,  but  tortious,  and 
that  the  question  of  the  extent  of  the  liability  is  to  be  deter- 
mined in  accordance  with  the  lex  loci  delicti.'' 

§  170.  Same  —  Insurance  Contracts.  —  Instances  of  the  ap- 
plication of  the  lex  celebrationis  frequently  arise  also  in  regard 
to  the  validity  of  provisions  contained  in  insurance  policies.^ 

Thus,  it  is  a  general  rule  that  if,  by  the  lex  celebrationis,  the 
making  of  an  insurance  contract  by  foreign  insurance  companies 
is  prohibited  in  that  State,  unless  they  have  complied  with  cer- 
tain conditions  imposed  by  that  law,  the  policy,  being  void 
where  made,  is  to  be  deemed  void  everywhere,  even  though  it 
be  made  payable  elsewhere,  or  though  it  be  expressly  stipulated 

»  Hale  V.  Nav.  Co.,  15  Conn.  539,  39  Am.  Dec.  398;  The  Majestic, 
9  C.  C.  A.  161,  60  Fed.  624. 

*  Western,  etc.  R.  R.  Co.  v.  Cotton  Mills,  81  Ga.  522,  7  S.  E.  916 ;  Tal- 
bott  V.  Transportation  Co.,  41  la.  247,  20  Am.  Rep.  589. 

6  Reed  v.  Tel.  Co.,  135  Mo.  661,  34  L.  R.  A.  492. 

•  Alexander  v.  Pennsylvania  Co.,  48  Ohio  St.  623,  30  N.  E.  69,  71. 

">  See  Alabama,  etc.  R.  R.  Co.  v.  Carroll,  97  Ala.  126,  11  So.  803,  807. 
See  post,  §  197. 

^  Indeed  the  law  of  the  place  where  the  contract  of  insurance  is  entered 
into  is  usually  the  law  which  governs  most  questions  of  its  validity,  since  the 
performance  of  an  insurance  contract  (that  is,  the  payment  of  the  money  due 
thereon)  will  never  be  illegal.  The  lex  solutionis  of  the  contract  of  insurance 
may  control  the  obligation  and  construction  of  the  policy,  but  not  its  validity 


408  EXEMPTIONS   IN   INSURANCE   CONTRACTS.        §  170 

that  it  shall  be  regarded  as  a  contract  of  another  State.*  On  the 
other  hand,  if  the  contract  of  insurance  is  valid  where  it  is  en- 
tered into,  the  fact  that  it  insures  persons  or  property  in  another 
State,  by  whose  law  the  company  could  not  have  written  the  in- 
surance there,  is  immaterial.     The  lex  celebrationis  controls.* 

So  the  validity  of  particular  provisions  in  an  insurance  policy 
exempting  the  insurer  from  liability  in  certain  contingencies 
must  in  general  be  determined  by  the  lex  celebrationis  of  the 
contract.  Like  similar  clauses  of  exemptions  in  bills  of  lading, 
they  constitute  independent  collateral  contracts  executed,  and 
are  to  be  regarded  as  having  their  situs  at  the  locus  celebra- 
tionis of  the  principal  contract,  regardless  of  its  locus  solutionis. 
Where  the  law  of  a  State  invalidates  such  exemptions,  its  policy 
is  to  override  the  intention,  and  even  the  express  agreement  of 
the  parties.  Hence  the  purpose  of  the  parties,  though  explicitly 
expressed,  to  submit  themselves  to  a  different  law  is  of  no  avail, 
if  in  fact  the  contract  is  made  in  the  first  State.  It  is  not  a 
question  of  the  purpose  of  the  parties ;  the  applicatory  law  ad- 
mits that  purpose  and  explicitly  overrules  it.* 

Thus,  a  stipulation  that  the  suicide  of  the  insurer  shall  dis- 
charge the  contract,  even  though  the  suicide  be  not  contem- 
plated at  the  time  of  the  insurance,  has  been  held  to  be  void  in 
one  State,  if  invalidated  by  the  law  of  another  where  the  in- 
surance contract  was  made.^  And  so  the  validity  of  a  stipu- 
lation that  the  non-payment  of  premiums  shall  avoid  the  policy 
is  to  be  determined  likewise  by  the  lex  celebrationis  of  the  in- 
surance contract.® 

a  Reliance  Ins.  Co.  v.  Sawyer,  160  Mass.  413,  36  N.  E.  59  ;  Wood  v.  Ins. 
Co.,  8  Wash.  427,  36  Pac.  267;  Ford  v.  Ins.  Co.,  6  Bush  (Ky.),  133,  99  Am. 
Dec.  663.  For  the  rules  by  which  to  determine  the  locus  celebrationis  of  an 
insurance  contract,  see  ante,  §  166. 

8  Seamans  v.  Knapp  Co.,  89  Wis.  171,  27  L.  R.  A.  362 ;  State  Ins.  Co.  v. 
Brinkley  Co.,  61  Ark.  1,  29  L.  R.  A.  712  ;  Hyde  v.  Goodnow,  3  N.  Y.  266  ; 
Western  v.  Ins.  Co.,  12  N.  Y.  258;  Huntley  v.  Merrill,  32  Barb.  (N.  Y.)  626. 

*  The  law  of  the  situs,  not  the  law  "in  the  minds  of  the  parties,"  is  the 
"  proper  law  "  governing  matters  of  validity.     See  ante,  §  154. 

8  Knights  Templar  Indemnity  Co.  v.  Berry,  1  C.  C.  A.  561,  50  Fed.  511 ; 
National  Union  v.  Marlow,  21  C.  C.  A.  89,  74  Fed.  775. 

«  Hicks  V.  Ins.  Co.,  9  C.  C.  A.  215,  60  Fed.  690 ;  Equitable,  etc.  Soc 


§  171  CAPACITY  TO   CONTRACT.  409 

Another  question  likely  to  arise  in  this  connection  relates  to 
the  proper  law  governing  the  effect  of  unintentional  or  innocent 
misrepresentations  in  the  policy  touching  material  matters.  If 
the  law  does  not  prohibit  the  parties  from  stipulating  in  their 
contract  as  to  the  ei^ect  of  such  misrepresentations,  they  may 
either  make  express  stipulations  in  the  policy  as  to  the  effect 
upon  it  of  such  misrepresentations,  or  they  may  refer  to  a  law 
of  their  own  choosing  to  determine  the  question.' 

But  if  express  stipulations  would  be  of  no  avail  against  the 
prohibitions  of  the  law  of  the  situs,  neither  may  the  parties 
select  a  law,  other  than  the  law  of  the  situs,  to  govern  such  ques- 
tions ;  for  this  would  be  to  permit  the  parties  to  do  indirectly 
what  the  law  refuses  to  allow  them  to  do  directly.  If  they 
desire  a  different  law  to  govern  the  transaction,  they  must  take 
refuge  in  a  new  jurisdiction  and  submit  themselves  to  another 
sovereignty.® 

Upon  the  same  principles,  the  question  whether  the  party 
paying  the  premiums  has  an  insurable  interest  in  the  life  of  the 
insured,  relating  as  it  does  to  the  party's  capacity  to  make  the 
contract,  is  an  element  in  the  making  of  the  contract,  to  be 
governed  by  the  lex  celebrationis.' 

§  171.  Capacity  to  Contract  —  Lez  Loci  Celebrationis.  — . 
The  capacity  to  enter  into  a  contract,  and  the  "proper  law'* 
applicable  to  it,  has  already  been  fully  discussed  in  connection 
with  the  subject  of  status.^  We  there  saw  that  though  the  gen- 
eral rule  is  that  the  lex  domicilii  governs  matters  of  status, 

V.  Nixon,  26  C.  C.  A.  620,  81  Fed.  796  ;  Equitable,  etc.  Soc.  v.  Trimble,  27 
C.  C.  A.  404,  83  Fed.  85 ;  Wall  v.  Equitable,  etc.  Society,  32  Fed.  273.  «But 
see  Phinney  v.  Ins.  Co.,  67  Fed.  493,  where  the  court  accepted  as  the  guide 
"the  law  the  parties  had  in  view." 

^  Wherever  the  maxim  "  modus  et  conventio  legem  vincunt "  applies,  the 
parties  may  select  their  own  law.  In  such  cases,  "the  law  in  the  minds  of 
the  parties  "  is  the  proper  law.     Ante,  §  154. 

8  See  Perry  v.  Ins.  Co.,  67  N.  H.  291,  33  Atl.  731 ;  Penn  Mat.  L.  Ins.  Co, 
r.  Trust  Co.,  19  C.  C.  A.  286,  72  Fed.  413  ;  Fletcher  v.  Ins.  Co.,  13  Fed.  526. 

»  Hurst «.  Mut.L.  Ass'n.,  78  Md.  59,  20  L.  R.A.  761,  26  Atl.  956  ;  Voor- 
heis  I'.  Society,  91  Mich.  469,  51  N.  W.  1109;  Ruse  v.  Ins.  Co.,  23  N.  Y. 
516.  This  really  comes  more  properly  under  the  head  of  the  capacity  to  con- 
tract. 

1  Ante,  §§  72  et  seq. 


410  FORMAL  VALIDITY  OF   CONTRACTS.  §  172 

including  personal  capacities  of  various  kinds,  yet  this  is  not 
true  where  the  capacity  in  question  is  the  power  to  enter  into  a 
voluntary  transaction,  as  in  the  case  of  contracts,  except  only 
when  the  contract  is  sought  to  be  enforced  in  the  domicil  of  the 
promisor,  and  the  policy  of  that  domicil  is  very  pronounced  in 
favor  of  the  protection  of  the  promisor  resident  therein. 

Except  in  this  case,  the  lex  loci  contractus  governs  the 
capacity  of  parties  to  contract,  but  if  the  contract  is  executory 
the  "  lex  loci  contractus  "  furnishes  no  guide  ;  it  must  be  fur- 
ther analyzed,  and  a  conclusion  reached  whether  the  "  proper 
law  "  is  the  lex  celebrationis  or  the  lex  solutionis. 

It  is  apparent  that  this  question  relates  to  the  making  of  the 
contract.  The  only  law  that  can  operate  to  create  a  contract  is 
the  law  of  the  place  where  the  contract  is  entered  into  (lex 
celebrationis).  If  the  parties  enter  into  an  agreement  in  a  par- 
ticular State,  the  law  of  that  State  alone  can  determine  whether 
a  contract  has  been  made.  If  by  the  law  of  that  State  no  con- 
tract has  been  made,  there  is  no  contract.  Hence,  if  by  the  lex 
celebrationis  the  parties  are  incapable  of  making  a  binding  con- 
tract, there  is  no  contract  upon  which  the  law  of  any  other  State 
can  operate.     It  is  void  ah  initio. 

This  has  been  happily  expressed  in  a  decision  of  a  federal 
court  in  the  following  language :  "  Upon  principle  no  reason 
can  be  alleged  why  a  contract,  void  for  want  of  capacity  of  the 
party  at  the  place  where  it  is  made,  should  be  held  good  because 
it  provides  that  it  shall  be  performed  elsewhere,  and  nothing 
can  be  found  in  any  adjudicated  case  or  text-book  to  support 
such  a  conclusion.  It  is  a  solecism  to  speak  of  that  transaction 
as  a  contract,  which  cannot  be  a  contract  because  of  the  ina- 
bility of  the  parties  to  make  it  such."  ' 

§  172.  Formal  Validity  of  Contracts  —  Lex  Celebrationis  — 
Marriages  —  Stamps.  —  By  the  formal  validity  of  a  contract  is 
meant  the  necessary  compliance  with  the  forms  and  ceremonies 
prescribed  by  law  upon  entering  into  certain  contracts.  It  is 
evident  that  if  the  forms  and  ceremonies  thus  prescribed  by  the 
law  of  a  State  are  essential  to  the  validity  of  the  contract,  if 
entered  into  in  that  State,  there  can  never  have  been  any  con- 

*  Campbell  v.  Crampton,  2  Fed.  417.  423. 


I  1T5J  FORMAL  VALIDITY  OP   CONTRACTS.  4H 

tract  if  those  forms  are  wanting.  Such  matters  relate  to  the 
making  of  the  contract,  and  are  therefore  to  be  governed  by 
the  law  of  the  situs  of  the  making  (the  lex  celebrationis).  On 
the  other  hand,  if  the  contract  is  entered  into  with  all  the  forms 
required  by  the  lex  celebrationis,  it  is  equally  obvious  that  the 
omission  of  some  of  the  forms  demanded  by  the  law  of  the  place 
of  performance  of  the  contract  is  immaterial.  The  law  of  the 
latter  place  manifestly  only  applies  to  contracts  made  there  ;  to 
hold  otherwise  would  be  to  suppose  its  legislature  intent  upon 
usurping  the  authority  of  other  States  over  acts  done  within 
their  limits.  It  is  therefore  well  settled  that  the  formal  va- 
lidity of  a  contract  is  to  be  governed  by  the  lex  loci  celebrationis.* 
The  intention  or  design  of  the  parties  to  contract  under  a  dif- 
ferent law,  or  the  fact  that  the  parties  "  had  in  mind  "  a  differ- 
ent law,  is  immaterial.  As  said  by  Judge  Story:  *'The  law 
of  the  place  of  the  contract  acts  upon  it,  independently  of  any 
volition  of  the  parties,  in  virtue  of  the  general  sovereignty 
possessed  by  every  nation  to  regulate  all  persons  and  property 
and  transactions  within  its  own  territory."  ^ 

Ordinarily,  the  law  does  not  require  that  contracts  should  be 
entered  into  with  any  special  solemnities.  But  there  are  some 
contracts  which,  for  one  reason  or  another,  are  in  many  States 
required  to  be  executed  with  certain  formalities,  and  to  these 
the  principle  above  mentioned  is  applicable. 

Such,  for  example,  is  the  contract  of  marriage.  It  is  now 
firmly  settled,   as  we   have  already  seen,  that  the  forms  and 

1  Dicey,  Confl.  L.  549  ;  Story,  Confl.  L.  §§  260,  301  a  ;  Whart.  Confl.  L. 
§§  401,  418  ;  Pritchard  v.  Norton,  106  U.  S.  124,  130,  134  ;  Scudder  v.  Bank, 
91  TJ.  S.  406,  411,  412-413;  Park  v.  Mfg.  Co.,  1  C.  C.  A.  395,  49  Fed.  618, 
627  ;  Bowles  i>.  Field,  78  Fed.  742,  743;  Phinney  v.  Ins.  Co.,  67  Fed.  493, 
495  ;  Garrettson  v.  Bank,  47  Fed.  867  ;  Matthews  v.  Murchison,  17  Fed.  760, 
768  ;  Campbell  v.  Crampton,  2  Fed.  417,  420  ;  Pope  v.  Nickerson,  3  Story, 
465,  484;  Burnett  v.  R.  R.  Co.,  176  Penn.  St.  45,  34  Atl.  972;  Thomson- 
Houston  Electric  Co.  v.  Palmer,  52  Minn.  174,  53  N.  W.  1137, 1138  ;  Kinney 
T>.  Com.,  30  Gratt.  (Va.)  858 ;  Taylor  v.  Sharp,  108  N.  C.  377,  13  S,  E.  138, 
139  ;  Satterthwaite  v.  Doughty,  Busbee's  L.  (N.  C.)  314,  59  Am.  Dec.  554; 
Wilder's  Succession,  22  La.  Ann.  219,  2  Am.  Rep.  721,  724  ;  Vldal  v.  Thomp 
Bon,  11  Mart.  (La.)  23  ;  Carnegie  r.  Morrison,  2  Met.  (Mass.)  381,  401. 

«  Story,  Confl.  L.  §  261. 


412  FORMAL  VALIDITY  OF   CONTRACTS.  §  172 

ceremonies  essential  to  the  validity  of  the  marriage  ceremony 
are  to  be  regulated  by  the  lex  celebrationis,  the  law  of  the 
place  where  the  marriage  is  solemnized,  not  that  of  the  domicil, 
or  intended  domicil,  of  the  parties.' 

Another  instance,  wherein  the  validity  of  a  contract  may  de- 
pend upon  a  matter  of  form,  arises  under  stamp  laws.  Some- 
times, for  the  purpose  of  raising  revenue,  laws  are  passed 
requiring  contracts  of  various  kinds  to  be  stamped.  Such  laws 
differ  in  their  provisions,  some  avoiding  the  contract  altogether 
if  written  upon  unstamped  paper;  others  merely  declaring  that 
the  writing,  under  such  circumstances,  is  not  to  be  received  in 
evidence. 

If  the  lex  celebrationis  renders  absolutely  void  a  contract 
written  on  unstamped  paper,  the  stamping  becomes  one  of  the 
necessary  formalities  of  the  contract,  the  omission  of  which  will 
avoid  the  contract  everywhere,  even  though  by  the  lex  solutionis 
or  lex  fori  the  contract  is  valid.  The  alleged  invalidity  relates 
to  the  making  of  the  contract.  If  void  for  the  lack  of  a  stamp 
by  the  lex  celebrationis,  it  is  void  in  its  incipiency,  and  cannot 
be  made  good  by  the  subsequent  application  of  the  lex  solutionis 
or  any  other  law.  And  so,  if  valid  where  made,  the  require- 
ment of  any  other  law  that  there  should  be  a  stamp  will  not 
affect  its  validity :  the  contract  is  valid  everywhere.* 

But  if  the  lex  celebrationis  merely  prohibits  a  contract  on 
unstamped  paper  to  be  received  in  evidence,  or  provides  that  no 
action  shall  be  brought  thereon,  the  law  does  not  go  to  the  valid- 
ity of  the  contract  at  all,  but  only  to  the  remedy^  and  the  law 
of  the  situs  of  the  remedy  (lex  fori)  will  govern.* 

8  Ante,  §  77. 

*  Story,  Confl.  L.  §§  260,  318  ;  Fant  v.  Miller,  17  Gratt.  (Va.)  47  ;  Car- 
negie 17.  Morrison,  2  Met.  (Mass.)  381,  401;  Satterthwaite  v.  Doughty,  Busbee's 
L.  (N.  C.)  314,  59  Am.  Dec.  554;  Vidal  i>. Thompson,  11  Mart.  (La.)  23- 
25  ;  Campbell  v.  Crampton,  2  Fed.  417,  420.  But  in  New  York  it  has  been 
held  that  unstamped  contracts  made  abroad,  though  void  by  the  lex  celebra- 
tionis, will  not  be  deemed  void  in  New  York,  upon  the  ground  that  foreign 
revenue  laws  will  not  be  enforced.  See  Ludlow  v.  Van  Rensselaer,  1  Johns. 
94  ;  Skinner  v.  Tinker,  34  Barb.  333. 

6  Story,  Confl.  L.  §  260;  Fant  v.  Miller,  17  Gratt.  (Va.)  47.  See  post, 
§  1 73.     But  if  the  above  mentioned  provisions  should  be  found  in  the  lex  fori, 


§  173  STATUTE  OP   FRAUDS.  413 

§  173.  Same  —  Contxacts  in  Writing  —  Statute  of  Frauds. 
—  There  are  many  contracts  which,  by  the  statutes  of  Frauds  of 
the  various  States,  or  by  similar  statutes,  are  required  to  be  in 
writing.  The  terms  of  these  statutes  are  not  the  same  in  all 
the  States,  nor  do  they  always  apply  to  the  same  classes  of  con- 
tracts. In  the  main,  the  English  statute  of  Frauds  forms  the 
basis  of  all  of  them,  but  there  is  considerable  divergence  in  de- 
tails. Certain  classes  of  contracts  embraced  by  the  English 
statute  of  Frauds  are  omitted  in  some  of  these  statutes,  while 
other  classes  of  contracts  have  been  sometimes  added.  Some  of 
these  provisions  declare  that  the  contracts  mentioned  therein 
shall  be  void  unless  reduced  to  writing,  while  others  affirm  that 
no  action  shall  be  brought  on  such  contracts  unless  they  are  in 
writing.  Owing  to  the  frequency  with  which  these  statutes  are 
applied  and  the  diversity  of  their  provisions,  conflicts  often 
arise. 

The  principles  governing  these  cases  are  the  same  as  those 
already  considered.  If  it  is  alleged  that  the  contract  is  void, 
because  not  in  writing,  it  is  a  question  of  the  formal  validity  of 
the  contract,  to  be  determined  by  the  lex  loci  celebrationis.^ 

Thus,  in  Hunt  v.  Jones,*  an  oral  contract  for  the  sale  of 
goods  was  made  in  Rhode  Island,  but  the  contract  was  to  be 
performed  in  New  York  by  the  delivery  of  the  goods  there. 
The  New  York  statute  of  Frauds  provided  that  ''every  contract 
for  the  sale  of  any  goods  .  .  .  for  the  price  of  $50  or  more  shall 
be  void,  unless  a  note  or  memorandum  of  such  contract  be  in 

not  in  the  "proper  law,"  it  is  probable  that  the  question  becomes  one  of  the 
obligation  of  the  contract  to  be  governed  in  general  by  the  "  proper  law  "  of 
the  contract,  instead  of  a  matter  of  remedy  to  be  controlled  by  the  lex  fori. 
See  post,  §  210. 

^  Story,  Confl.  L.  §  262  ;  "Wolf  u.  Burke,  18  Colo.  264,  32  Pac.  427  ;  Hunt 
D.Jones,  12  R.  1.  265,  34  Am.  Rep.  635  ;  Perry  v.  Mount  Hope  Iron  Co.,  15 
R.  I.  380,  5  Atl.  632  ;  Miller  t>.  Wilson,  146  111.  523,  34  N.  E.  1111  ;  Wilson 
V.  Mills  Co.,  150  N.  Y.  314,  44  N.  E.  959  ;  Scudder  v.  Bank,  91  U.  S.  406  ; 
Hubbard  v.  Bank,  18  C.  C.  A.  525,  72  Fed.  234  ;  Phinney  v.  Ins.  Co.,  67  Fed. 
493,  497  ;  Houghtaling  v.  Ball,  19  Mo.  84,  59  Am.  Dec.  331  ;  Hausman  v. 
Nye,  62  Ind.  485,  30  Am.  Rep.  199  ;  Keiwert  v.  Meyer,  62  Ind.  587,  30  Am 
Rep.  206,  209  ;  Sullivan  v.  Sullivan,  70  Mich.  583,  38  N.  W.  472. 

8  12  R.  I.  265,  34  Am.  Rep.  635. 


414  STATUTE   OF   FRAUDS.  §  173 

writing,"  etc.  The  oral  contract  was  valid  in  Rhode  Island, 
Upon  suit  brought  in  Rhode  Island,  the  defendant  requested  the 
court  to  charge  that  as  the  contract  was  to  be  performed  in  New 
York,  its  validity  and  construction  were  to  be  judged  by  the 
law  of  the  place  of  performance,  and  that,  the  contract  being 
void  in  New  York,  the  plaintiff  could  not  recover.  But  it  was 
held  that  the  law  of  Rhode  Island  (lex  celebrationis)  should 
determine  the  validity  of  the  contract. 

In  Scudder  v.  Bank,'  a  member  of  a  Missouri  firm  had  ver- 
bally accepted  in  Illinois,  on  behalf  of  the  firm,  a  draft  drawn 
upon  the  firm.  A  statute  of  Missouri  provided  that  "  no  person 
in  this  State  shall  be  charged  as  an  acceptor  of  a  bill  of  ex- 
change, unless  his  acceptance  shall  be  in  writing,  signed  by 
himself  or  his  lawful  agent."  The  verbal  acceptance  made  in 
Illinois,  though  to  be  performed  in  Missouri,  was  sustained. 

On  the  other  hand,  if  the  question  is  not  one  of  the  validity 
of  the  contract,  but  only  whether  or  not,  under  the  statute  of 
Frauds,  an  action  may  be  brought  upon  a  contract  not  in  writing, 
the  requirement  that  it  should  be  in  writing  becomes  (it  is  said) 
merely  a  matter  pertaining  to  the  remedy,  to  be  in  all  cases 
governed  by  the  law  of  the  situs  of  the  remedy  (lex  fori).* 

Thus,  in  Leroux  v.  Brown,  ^  a  verbal  contract  not  to  be  per- 
formed within  a  year  was  made  in  France,  upon  which  an  action 
was  brought  in  England.  By  the  law  of  France  the  contract 
was  enforceable,  but  the  English  statute  of  Frauds  provided  that 
no  action  should  he  brought  upon  a  contract  not  to  be  performed 
within  one  year,  unless  the  contract  were  in  writing,  etc.  The 
court  was  unanimously  of  the  opinion  that  the  statute  applied 
to  the  remedy,  and  was  intended  to  prohibit  an  action  to  be 
brought  in  England  upon  such  a  verbal  contract,  no  matter 
where  made.     The  action  was  accordingly  dismissed. 

»  91  U.  S.  406. 

«  Leroux  v.  Brown,  14  Eng.  L.  &  Eq.  247,  74  E.  C.  L.  800  ;  Wolf  v.  Burke, 
18  Colo.  264,  32  Pac.  427  ;  Downer  v.  Chesebrough,  36  Conn.  39,  4  Am.  Rep. 
29 ;  Hall  v.  Cordell,  142  U.  S.  116.  But  see  Baxter  Bank  v.  Talbot,  154 
Mass.  213,  28  N.  E.  163  ;  post,  §  210,  where  this  statement  is  qualified. 

»  14  Eng.  L.  &  Eq.  247  ;  s.  c.  74  E.  C.  L.  800.  See  Pritchard  v.  Norton, 
106  IT.  S.  124,  134.  It  may  well  be  doubted  if  this  decision  is  correct  upon 
principle.     See  post,  §  210. 


§  174  CONTRACTS  FOR   SALE   OF   LAND.  4l5 

In  Downer  v.  Chesebrough, '  the  case  of  Leroux  v.  Brown  wa« 
quoted  with  approval,  and  the  court  proceeded  to  say  :  "If  this 
decision  is  law,  then  the  converse  of  the  legal  proposition  must 
be  true.  If  the  statute  of  Frauds  had  existed  in  France  at  the 
time  the  contract  was  made,  but  not  in  England  where  the  suit 
was  brought,  the  action  would  have  been  sustained,  though  it 
could  not  have  been  by  the  law  of  France." 

In  Leroux  v.  Brown,  supra,  the  court  distinguished  the  fourth 
section  of  the  statute  of  Frauds  (under  which  the  case  arose)  from 
the  seventeenth  section  relating  to  the  sale  of  goods.  By  the 
terms  of  the  latter  section  it  was  provided  that  ''  no  contract  for 
the  sale  of  goods  shall  be  allowed  to  be  good,"  unless  in  writing, 
etc.  The  court,  in  the  course  of  its  opinion,  said  that  if  the 
French  verbal  contract  had  arisen  under  the  seventeenth  section 
«f  the  statute,  the  action  in  England  would  have  been  sustained 
for  the  reason  that  it  related  to  the  validity  of  the  contract  (which 
in  such  case  would  be  determined  by  French,  not  English,  law), 
but  did  not  prohibit  the  English  courts  from  entertaining  juris- 
diction of  such  contracts  if  not  made  in  England  and  governed 
by  English  law. 

Tracing  these  principles  to  their  legitimate  conclusion,  it 
would  follow  that  if  the  lex  celebrationis  of  a  verbal  contract 
should  provide  that  *' no  action  should  be  brought"  upon  the 
contract  unless  it  were  in  writing,  while  the  lex  fori  provides 
that  the  same  contract  shall  be  "void  "  unless  it  be  in  writing, 
the  contract  would  be  enforceable  in  the  forum  notwithstanding 
both  these  laws ;  for  the  formal  validity  of  the  contract  would  be 
governed  by  the  lex  celebrationis  of  the  contract,  under  which 
the  oral  contract  is  not  invalid,  while  the  remedy  would  be  gov- 
erned by  the  lex  fori.  In  the  case  supposed,  the  statute  of  the 
forum  relates  to  contracts  made  there,  while  the  statute  of  the 
locus  celebrationis  relates  to  actions  brought  there.  Neither 
statute  therefore  would  apply  to  the  above  case."' 

§  174.  Same  —  Contracts  for  the  Sale  of  Land.  —  It  has 
been  doubted  by  eminent  authorities  whether  the  same  princi- 
ples will  apply  in  the  case  of  contracts  for  the  sale  or  lease  of 

e  36  Conn.  39,  4  Am.  Rep.  29. 

I  See  Wolf  V.  Burke,  18  Colo.  264,  32  Pac.  427. 


416         CONTRACTS  FOR  SALE  OF  LAND.       §  174 

real  estate,  it  being  said  that  the  lex  situs  of  the  land  must  con- 
trol the  formal  validity  of  the  contract,  and  not  the  lex  celebra- 
tionis. Hence  where  the  lex  situs  of  the  land  declares  such 
contracts  void  unless  in  writing,  it  is  said  that  the  lex  situs 
must  govern,  though  the  lex  celebrationis  or  the  lex  fori  does 
not  invalidate  an  oral  contract  of  this  sort ;  and  vice  versa.^ 

So  far  as  the  title  to  the  land  in  question  is  conveyed  by  the 
contract,  this  is  doubtless  true,  for  the  rule  is  general  that  every 
link  in  the  chain  of  title  to  .veal  estate  must  be  in  accordance 
with  the  lex  situs.^ 

But  though  a  verbal  contract  to  convey  land  be  void  according 
to  the  lex  situs  of  the  land,  and  is  therefore  incompetent  to  pass 
the  equitable  title  to  the  property,  it  does  not  follow  that  as  a 
mere  personal  contract  it  should  also  be  treated  as  void,  if  valid 
by  the  lex  celebrationis.'  Hence  although,  if  it  be  attempted 
to  treat  the  contract  as  having  passed  a  title  to  the  land,  its  for- 
mal validity  must  be  determined  by  the  lex  situs  of  the  land, 
yet  if  a  suit  for  specific  performance  of  the  contract  be  brought 
in  the  locus  celebrationis  or  in  a  third  State,  or  (probably)  in 
the  situs  of  the  property,*  the  court  having  jurisdiction  over  the 
promisor's  person,  there  would  seem  to  be  no  reason  why  it  could 
not,  in  pursuance  of  the  executory  contract  validly  entered  into 
under  the  lex  celebrationis,  decree  a  deed  to  be  executed  which 
should  conform  to  all  the  requirements  of  the  lex  situs.  And  if 
the  promisee,  waiving  his  rights  to  the  land  itself,  should  treat 
the  contract  as  purely  personal,  suing  at  law  for  damages  for  its 

1  Story,  Confl.  L.  §§  363,  364.  See  Dicey,  Confl.  L,  551 ;  Cochran  v. 
Ward,  5  Ind.  App.  89,  29  N.  E.  795  ;  Poison  v.  Stewart,  167  Mass.  211,  219, 
45  N.  E.  737  (dissenting  opinion). 

2  Ante,  §§  11,  12. 

8  See  Whart.  Confl.  L.  §  276  a. 

*  No  reason  is  perceived  why  the  courts  of  the  situs  should  not  in  such  case 
respect  the  lex  celebrationis  of  the  contract.  The  object  of  the  suit  is  to  ob- 
tain a  deed,  the  validity  of  which  must  ultimately  depend  upon  the  lex  situs 
of  the  land.  The  policy  of  the  situs  is  thus  made  sure  of  enforcement.  So 
long  as  the  promisee  does  not  claim  title  to  or  exercise  ownership  over  the 
land  by  virtue  of  the  executory  contract  of  sale,  it  is  a  mere  personal  contract 
like  any  other,  to  be  governed,  it  would  seem,  by  the  same  law.  See  Polsoo 
V  Stewart,  167  Mass.  211,  45  N.  E.  737. 


§  174  CONTRACTS  FOR   SALE  OF   LAND.  417 

breach,  still  less  reason  can  be  assigned  for  causing  its  formal 
validity  to  depend  upon  the  lex  situs  of  the  land,  rather  than 
the  lex  celebrationis.  In  such  case,  the  lex  celebrationis  should 
govern,  whether  the  action  be  instituted  in  the  courts  of  the 
situs,  of  the  locus  celebrationis,  or  of  a  third  State.® 

In  Poison  V.  Stewart,*  a  covenant  was  made  by  a  husband  to 
his  wife,  in  North  Carolina,  where  they  were  domiciled,  to  sur- 
render all  his  rights  in  land  owned  by  her  in  Massachusetts 
The  question  in  this  case  was  not  of  the  formal  validity  of  the 
covenant,  but  of  the  capacity  of  the  parties  to  enter  into  such  an 
agreement.  But  the  capacity  to  contract  is  in  general  governed 
by  the  same  law  that  governs  the  formal  validity  of  the  contract 
(lex  celebrationis).''  The  covenant  in  this  case  was  valid  by  the 
law  of  North  Carolina  (lex  celebrationis),  but  would  have  been 
invalid  if  entered  into  in  Massachusetts  (the  situs  of  the  land). 
A  bill  was  filed  in  Massachusetts  against  the  husband  for  the 
specific  enforcement  of  the  covenant,  and  it  was  held  that  it  could 
be  enforced.  The  court  said  :  ''  But  it  is  said  that  the  lex  domi- 
cilii (sic)  of  the  parties  could  not  authorize  a  contract  between 
them  as  to  lands  in  Massachusetts.  Obviously  this  is  not  true. 
It  is  true  that  the  laws  of  other  States  cannot  render  valid  con- 
veyances of  property  within  our  borders,  which  our  laws  say  are 
void,  for  the  plain  reason  that  we  have  exclusive  power  over  the 
res.  But  the  same  reason  inverted  establishes  that  the  lex  rei 
sitae  cannot  control  personal  covenants,  not  purporting  to  be 
conveyances,  between  persons  outside  the  jurisdiction,  although 

6  See  Story,  Confl.  L.  %Z72d;  Whart.  Confl.  L.  §  276  a  ;  Carnegie  o.  Mor- 
rison, 2  Met.  (Mass.)  381,  397-398;  Poison  v.  Stewart,  167  Mass.  211,  45 
N.  E.  737  ;  Wolf  v.  Burke,  18  Colo.  264,  32  Pac.  427 ;  Miller  v.  Wilson,  146 
111.  523,  34  N.  E.  1111.  In  both  the  last  two  cases  the  contract  was  made  in 
the  situs  of  the  land,  and  hence  they  are  indecisive.  But  the  reasoning,  espe- 
cially in  the  last  case,  seems  to  jwint  to  the  lex  celebrationis  rather  than  the 
lex  situs  as  controlling  the  question.  It  should  be  noted  however  that  even 
though  the  lex  celebrationis  should  declare  a  conti-act  for  the  sale  or  lease  of 
land  to  be  void  unless  in  writing,  it  may  perhaps  be  doubted  whether  such  a 
statute  was  intended  to  embrace  land  in  other  States,  over  which  the  legisla- 
ture had  no  jurisdiction.     See  Gibson  v.  Ins.  Co.,  77  Fed.  561,  564. 

6  167  Mass.  211,  45  N.  E.  737. 

7  Ante,  §§  171,  172. 

27 


418  CONTRACTS   VOID   IN   THE   PERFORMANCE.       §  175 

concerning  a  thing  within  it.  Whatever  the  covenant,  the  laws 
of  North  Carolina  could  subject  the  defendants'  property  to  seiz- 
ure on  execution  and  his  person  to  imprisonment  for  failure  to 
perform  it.  Therefore  on  principle  the  law  of  North  Carolina 
determines  the  validity  of  the  contract." 

The  same  diversity  of  opinion  seems  to  exist  when  the  statute 
relating  to  the  sale  of  lands  provides  that  "?io  action  shall  be 
brought  "  on  such  contracts,  unless  in  writing.  Where  a  statute 
uses  this  phrase,  common  sense  would  seem  to  dictate  that  the 
legislature  could  not  intend  thereby  to  interdict  actions  brought 
in  other  States,  for  it  has  no  control  whatever  over  the  judicial 
proceedings  of  other  States.  It  could  only  have  been  intended 
to  apply  to  actions  brought  on  the  contract  in  the  State  enact- 
ing the  statute.  It  is  manifest  that  the  legislature  must  in- 
tend to  prescribe  a  rule  of  procedure  for  its  own  courts  only. 
Upon  principle  therefore  it  would  seem  clear  that  although 
there  is  a  statute  of  this  sort  in  the  situs  of  the  land  or  in  the 
locus  celebrationis  of  the  contract,  yet  if  there  is  no  such  statute 
in  the  forum,  an  action  may  be  maintained  there  upon  the  con- 
tract, and  this  is  true  even  though  the  lex  fori  declares  such  a 
contract  not  in  writing  to  be  void;  for  the  latter  law  would  be 
applicable  only  to  contracts  made  in  the  forum.® 

Thus,  in  Wolf  v.  Burke,"  suit  was  brought  in  Colorado  upon 
a  verbal  contract  made  in  Idaho  for  the  sale  of  certain  mining 
lands  in  the  latter  State.  The  Colorado  statute  of  Frauds  pro- 
vided that  every  contract  for  the  sale  of  land  shall  be  void, 
unless  the  contract  or  some  note  or  memorandum  thereof  be  in 
writing,  etc.  The  court,  assuming  the  contract  to  be  valid 
in  Idaho,  held  that  an  action  might  be  maintained  thereon 
in  Colorado. 

§  175.  Performance  of  Contract  Prohibited  —  Lez  Loci 
Solutionis.  —  A  contract  may  be  invalid  because  the  act  to  be 
done  in  performance  thereof  is  prohibited  by  law.     A  makes  a 

8  See  Wolf  V.  Burke,  18  Colo.  264,  32  Pac.  427.  But  see  Cochran  v. 
Ward,  5  Ind.  App.  89,  29  N.  E.  795  ;  MUler  r.  Wilson,  146  111.  523,  34  N.  E. 
1111.  Where  such  a  statute  exists  in  the  forum  but  not  in  the  place  of  con* 
tract,  see  post,  §  210. 

•  18  Colo.  264,  32  Pac.  427. 


§  175       CONTRACTS   VOID   IN   THE  PERFORMANCE.  419 

contract  with  B  in  New  York  by  which  A  promises  to  do  an 
act  in  Virginia.  The  act  is  prohibited  by  New  York  law,  but 
not  by  that  of  Virginia.  A  moment's  analysis  will  show  that 
the  Virginia  law  should  govern,  and  that  the  contract  should  be 
sustained.  The  legislature  of  New  York,  in  prohibiting  the 
particular  act  to  be  done,  must  of  course  be  presumed  to  con- 
template only  the  doing  of  the  act  in  New  York:  it  can  have 
no  concern  with  acts  done  in  Virginia.  On  the  other  hand,  if 
we  suppose  the  act  agreed  to  be  done  is  permitted  by  the  law  of 
New  York,  but  is  prohibited  by  the  law  of  Virginia,  the  same 
conclusion  must  be  reached.  No  matter  in  what  State  the  va- 
lidity of  the  contract  is  questioned,  a  decent  comity  will  require 
the  courts  of  every  State  to  refuse  to  enforce  a  contract,  the 
purpose  and  effect  of  which  is  the  performance  of  an  act  in 
another  State  which  is  prohibited  by  its  laws. 

Hence,  as  the  situs  of  the  making  of  a  contract  (locus  celebra- 
tionis) furnishes  the  "proper  law"  to  govern  all  matters  of 
validity  connected  with  the  making  of  the  contract,  so  the 
situs  of  performance  (locus  solutionis)  furnishes  the  law  to 
determine  the  validity  of  the  contract  in  respect  to  matters 
connected  with  its  performance.^ 

Thus,  just  as  the  validity  of  a  contract  made  on  Sunday  is  to 
be  determined  by  the  law  of  the  place  where  it  is  made  (lex 
celebrationis  *),  so  the  validity  of  a  contract  made  on  a  week  day, 
but  to  be  performed  on  Sunday,  is  to  be  governed  by  the  law 
of  the  place  where  the  contract  is  to  be  performed  (lex  solu- 
tionis). For  example,  in  W.  U.  Tel.  Co.  v.  Way,'  a  message 
containing  an  acceptance  of  an  offer  to  purchase  cotton  was 
delivered  to  the  telegraph  company  in  Alabama  on  Saturday  for 

1  Dickinson  v.  Edwards,  77  N.  Y.  573,  581,  582,  33  Am.  Rep.  671  ;  W. 
tr.  Tel.  Co.  V.  Way,  83  Ala.  542,  4  So.  844  ;  Chambers  v.  Church,  14  R.  I. 
398,  51  Am.  Rep.  410  ;  Merchants'  Bankw.  Spalding,  9  N.  Y.  53,  62;  Green- 
wood V.  Curtis,  6  Mass.  358,  4  Am.  Dec.  145,  148  ;  Carnegie  v.  Morrison, 
2  Met.  (Mass.)  381,  397-398  ;  Nickels  v.  Association,  93  Va.  380,  25  S.  E.  8  ; 
First  National  Bank  v.  Hall,  150  Penn.  St.  466,  24  Atl.  665,  666  ;  Hickoxr. 
Elliott,  27  Fed.  830  ;  Lehman  v.  Feld,  37  Fed.  852 ;  Scudder  v.  Bank,  91 
U.  S.  406,  411.  But  see  Pope  v.  Nickerson,  3  Story,  465,  484;  Smith  v. 
Parsons,  55  Minn.  520,  57  N.  W.  311. 

«  Ante,  §  168.  »  83  Ala.  542,  4  So.  844. 


420  CONTRACTS   VOID  IN   THE   PERFORMANCE.       §  176 

transmission  to  Germany,  the  company  agreeing  to  deliver  it  to 
the  addressee  in  Germany  on  Sunday.  By  the  law  of  Alabama 
Sunday  contracts  were  void.  The  validity  of  this  contract 
being  questioned  in  Alabama,  it  was  held  that  the  effect  of  the 
act  of  performance  (the  delivery  of  the  telegram  in  Germany  on 
Sunday)  must  be  determined  by  German  law. 

In  Chambers  v.  Church,*  a  contract  was  made  to  catch  fish  in 
Virginia  waters  for  the  manufacture  of  manure  and  oil.  This 
act  was  prohibited  by  the  Virginia  statute.  The  Rhode  Island 
court  refused  to  enforce  the  contract  on  the  ground  that  it  was 
invalid  by  the  lex  solutionis. 

So,  the  validity  of  a  contract  made  in  one  State  to  prosecute 
a  suit  in  another  upon  shares  (a  champertous  suit)  will  be 
governed  in  general  by  the  law  of  the  place  of  performance; 
that  is,  the  law  of  the  place  where  the  suit  is  to  be  prosecuted. 
If  by  the  lex  loci  solutionis  it  is  not  illegal  to  prosecute  a  suit 
upon  shares  there,  the  contract  will  usually  be  valid,  though 
the  lex  celebrationis  prohibits  it ;  if  it  be  illegal  under  the  lex 
solutionis,  the  contract  will  be  invalid  everywhere.® 

Upon  the  same  principle  it  would  seem  that  the  validity  of  a 
contract  entered  into  in  one  State  not  to  engage  in  trade  in 
another  specified  State  should  be  governed  by  the  law  of  the 
latter  State  (lex  solutionis),  for  it  is  to  be  wholly  performed 
there.  If  the  contract  made  in  one  State  is  not  to  engage  in 
trade  in  several  specified  States,  it  would  seem  that  the  promise, 
as  to  its  performance,  should  be  regarded  as  severable,  the  validity 
of  the  contract  being  determined  by  the  law  of  each  of  the  latter 
States,  according  as  an  attempt  is  made  in  one  or  the  other  of 
those  States  to  enter  into  trade  there,  in  violation  of  the 
contract.® 

*  14  R.  I.  398,  51  Am.  Rep.  410. 

6  See  Hickox  v.  Elliott,  27  Fed.  830  ;  Richardson  v.  Rowland,  40  Conn. 
566.  But  if  the  lex  celebrationis  prohibits  the  very  making  of  such  a  con- 
tract, that  law  will  govern.  See  Blackwell  v.  Webster,  29  Fed.  614  ;  ante, 
§168. 

*  But  if  the  contract  restraining  trade  in  several  specified  States  (though 
severable  if  sued  upon)  constitutes  the  consideration  for  the  contract  in  suit, 
it  becomes  inseverable,  and  if  void  by  the  law  of  either  of  its  places  of  per* 
formance,  it  is  void  in  its  entirety,  and  cannot  support  the  contract  in  suiL 


§  176      CONTRACTS   VOID  IN   THE  CONSIDERATION.  421 

If  the  contract  in  restraint  of  trade  is  general  with  respect  to 
locality,  covering  a  territory  embracing  many  different  States, 
but  specifically  mentioning  none,  it  is  quite  certain  that  this 
should  be  regarded  as  a  contract  to  be  performed  generally,  like 
a  promise  to  pay  money  naming  no  place  of  payment,  and  the 
lex  celebrationis  should  govern.  Thus,  in  South  African  Brew- 
eries V.  King,'  an  injunction  was  sought  against  the  violation 
in  Natal,  South  Africa,  of  a  contract  made  in  the  Transvaal  not 
to  engage  in  the  brewing  business  in  any  part  of  South  Africa 
for  five  years.  The  injunction  was  refused  on  the  ground  that 
the  stipulation  was  void  by  the  law  of  the  Transvaal. 

§  176.  Validity  of  Consideration  —  Lex  Loci  Considera- 
tionis — Executory  'Consideration  —  The  invalidity  of  a  con- 
tract may  spring,  not  only  from  its  unlawful  making,  or  from 
the  illegality  of  the  act  to  be  performed  in  pursuance  thereof, 
but  from  the  illegality  or  insufficienc}'^  of  the  consideration  which 
supports  it.  The  legality  or  sufficiency  of  the  consideration  de- 
pends upon  the  law  of  the  situs  of  the  consideration.^  Further- 
more the  consideration  may  be  either  executed  or  executory.' 
If  executory,  it  may  be  a  promise  to  be  performed  where  made, 
or  made  in  one  place  and  to  be  performed  in  another,  whose 
validity  will  be  determined  by  the  lex  celebrationis  or  the  lex 
solutionis  of  the  consideration,  in  accordance  with  the  principles 
discussed  in  the  preceding  sections  of  this  chapter.  The  locus 
celebrationis  of  the  consideration  (the  promisee's  contract)  will 
usually  coincide  with  the  locus  celebrationis  of  the  promisor's 
contract,  but  the  locus  solutionis  of  the  promisee's  contract 
(the  consideration)  may  be  entirely  distinct  from  the  locus  solu- 
tionis of  the  promisor's  contract.  In  such  cases  the  validity  of 
the  executory  consideration  (the  promisee's  contract)  will  de- 
pend upon  its  lex  celebrationis  or  its  lex  solutionis,  according 
as  the  invalidity  alleged  relates  to  the  making  of  the  promisee's 
contract  or  to  its  performance. 

In  Ford  v.  Ins.  Co.,^  suit  was  brought  in  Kentucky  upon  cer- 
tain notes  given  by  the  defendants  as  premiums  for  insurance  on 
certain  boats.     The  notes  were  made  in  Indiana  in  consideration 

T  2  Ch.  D.  173.  1  Ante,  §  161. 

2  Ante,  §  162.  «  6  Bush  (Ky.),  1  33,  99  Am.  Dec.  663. 


422  CONTRACTS   VOID   IN   THE   CONSIDERATION.      §  176 

of  a  contract  of  insurance  there  entered  into.  The  policy  of  in- 
surance was  one  prohibited  by  Indiana  law  to  be  there  made. 
It  was  held  that  the  validity  of  the  notes  depended  upon 
the  validity  of  the  contract  of  insurance ;  and  as  that  contract 
was  entered  into  in  Indiana,  where  its  making  was  prohibited, 
it  was  invalid,  and  the  notes  were  therefore  also  invalid. 

So,  in  Blackwell  v.  Webster,*  suit  was  brought  in  New  York 
upon  a  contract,  the  consideration  for  which  was  a  promise  made 
in  Maine  to  prosecute  a  suit  for  a  legacy  in  New  York  upon 
shares.  The  making  of  a  charapertous  contract  was  prohibited 
by  the  Maine  law,  and  though  such  contracts  were  not  unlawful 
in  New  York  (the  locus  solutionis  of  the  consideration)  it  was 
held  that  the  contract  sued  upon  was  void  because  of  the  illegal- 
ity of  the  consideration  therefor  under  the  Maine  law. 

On  the  other  hand,  the  lex  solutionis  of  the  executory  con- 
sideration will  determine  the  validity  of  the  promisor's  contract, 
whenever  the  performance  of  the  promisee's  contract  (consider- 
ation) is  alleged  to  be  illegal,  without  regard  to  the  lex  celebra- 
tionis or  lex  solutionis  of  the  promisor's  contract. 

Thus  in  Blackwell  v.  Webster,  supra,  if  the  Maine  statute 
had  not  interdicted  the  making  of  champertous  contracts,  the 
validity  of  the  champertous  consideration  would  have  depended 
upon  the  New  York  law  (lex  solutionis  of  the  consideration), 
and  the  promisor's  contract  would  have  been  valid  or  invalid, 
according  as  the  New  York  law  permitted  or  condemned  the 
champertous  contract  of  the  promisee.* 

So,  in  Peet  v.  Hatcher,®  a  note  was  made  in  Georgia,  payable 
in  Georgia  to  certain  cotton  brokers  of  New  Orleans  to  cover 
margins  upon  speculations  in  cotton.  The  note  was  secured  by 
a  mortgage  of  land  in  Alabama,  and  suit  was  brought  there  to 
foreclose  the  mortgage.  It  was  held  that  the  law  of  Georgia 
(lex  celebrationis  et  solutionis)  should  not  prevail,  but  since 
the  objectionable  dealings  with  the  cotton  were  to  take  place  in 
Louisiana,  the  law  of  Louisiana  must  govern  the  validity  of  the 

*  29  Fed.  614.     See  ante,  §  168. 

»  Hickox  V.  Elliott,  27  Fed.  830.  See  Richardson  v.  Rowland,  40  Conn. 
666. 

•  112  Ala.  514,  21  So.  711,  712. 


§  176      CONTRACTS   VOID  IN  THE   CONSIDERATION.         423 

note  and  mortgage,  the  consideration  for  which  was  the  specu< 
lative  dealings  in  Louisiana.  The  court  said:  "The  defense 
mainly  relied  on  is  that  the  dealings  between  Hatcher  and  Peet 
&  Co.  (the  brokers)  were  gambling  transactions,  such  as  the 
courts  will  not  enforce.  It  is  pleaded  and  insisted  that  those 
transactions  were  governed  by  the  laws  of  Georgia,  where  the 
arrangement  under  which  they  were  had  was  entered  into  ...  by 
force  of  which  laws  the  contracts  made  in  the  purchase  of  cotton 
were  mere  wagers  and  void.  It  is  settled  by  the  decision  of 
this  court  in  a  case  precisely  like  the  present,  except  that  the 
dealings  were  on  the  New  York,  instead  of  the  New  Orleans, 
stock  exchange,''  that  the  contract  under  which  the  cotton  deal- 
ings were  to  be  had,  as  to  its  validity,  was  governed  by  the  laws 
of  the  State  wherein  it  was  to  be  performed  (in  that  case,  New 
York)."  » 

In  Commonwealth  of  Kentucky  v.  Bassford,'  a  Kentucky 
statute  authorized  a  lottery  for  a  certain  college.  The  law  of 
New  York  forbade  lotteries.  A  bond  was  entered  into  in  New 
York  conditioned  for  the  faithful  performance  of  duties  in  Ken- 
tucky touching  the  sale  of  lottery  tickets  authorized  by  the  above 
Kentucky  statute.  It  was  held  that  as  the  bond  was  valid  at 
the  place  when  the  consideration  was  to  be  performed,  the  courts 
of  New  York  would  uphold  it.^° 

T  Hawley  v.  Bibb,  69  Ala.  52. 

'  The  course  of  this  decision  is  very  curious.  The  court  held,  as  above 
stated,  that  the  law  of  Louisiana  should  govern  the  validity  of  the  note.  But 
the  law  of  Louisiana  was  not  in  evidence.  Under  these  circumstances  the 
court  assumed  that  the  law  of  Georgia  (where  the  note  was  made  and  payable) 
should  govern.  But  neither  was  the  Georgia  law  in  evidence.  The  jurispru- 
dence of  Georgia  being  based  upon  the  common  law  (it  was  otherwise  in  the 
case  of  Louisiana)  the  court  assumed  the  common  law  to  prevail  there,  by 
which  the  particular  transaction  was  sustained.  See  post,  §  214.  It  is  sub- 
mitted that  the  court  erred  in  principle  in  substituting  the  Georgia  law  for 
that  of  Louisiana,  merely  because  the  latter  was  not  in  evidence.  Georgia 
was  not  the  situs  of  the  consideration,  nor  could  it  be  made  so  merely  by  a 
failure  to  prove  the  law  of  Louisiana  (lex  loci  considerationis). 

9  6  Hill  (N.  Y.),  526. 

K'  In  this  case  there  was  some  doubt  whether  the  bond  was  executed  in  New 
York  or  in  Kentucky,  but  the  court  held  it  to  be  immaterial. 


424  CONTRACTS   VOID   IK   THE   CONSIDBRATION.      §  177 

§  177.  Executed  Considerations  —  Sufficiency  of  Con- 
sideration. —  In  the  majority  of  cases  perhaps  the  considera- 
tion is  not  executory,  but  executed,  consisting  either  of  a 
pre-existing  liability,  an  act  done,  or  an  executed  contract 
entered  into.  In  such  cases,  the  situs  of  the  consideration  is 
not  difficult  to  ascertain,  and  when  once  ascertained  the  same 
rules  prevail  as  before ;  the  law  of  the  situs  of  the  consideration 
will  determine  the  validity  of  the  promisor's  agreement,  so  far 
as  its  validity  depends  upon  the  validity  of  the  consideration. 

If  the  consideration  is  malum  in  se,  or  universally  deemed 
contra  bonos  mores,  the  lex  fori  will  generally  be  substituted  in 
the  place  of  the  lex  loci  considerationis.*  This  principle  occa- 
sionally creates  a  doubt  as  to  what  law  should  govern  the  valid- 
ity of  a  contract  for  the  reason  that  it  is  sometimes  a  matter  of 
doubt  whether  a  consideration  valid  by  its  proper  law,  though 
condemned  in  the  forum,  is  so  generally  deemed  immoral  as  to 
give  rise  to  the  operation  of  the  lex  fori.  Thus  gaming,  wagers, 
lotteries,  the  sale  or  hire  of  slaves,  contracts  relating  to  the 
slave-trade,  etc.,  constitute  considerations  which,  though  con- 
demned by  many  States,  are  not  forbidden  by  all.  We  find  the 
cases  somewhat  divided  here  upon  the  law  which  should  govern. 
The  weight  of  authority  is  in  favor  of  the  lex  loci  considera- 
tionis  as  the  proper  law,  unless  the  consideration  is  one  which 
the  policies  of  all  (or  almost  all)  civilized  States  unite  in  pro- 
hibiting.^ Bearing  in  mind  the  occasional  operation  of  the 
lex  fori  in  these  cases,  we  will  proceed  to  examine  the  "proper 
law"  governing  the  validity  of  a  contract  in  respect  of  the 
consideration. 

In  the  first  place  it  seems  clear  that  if  there  is  no  considera- 
tion at  all  to  support  the  contract,  the  effect  of  this  upon  the 
validity  of  the  contract  must  depend  upon  the  law  of  the  place 
where  the  promisor's  contract  is  entered  into,  not  upon  the  lex 

1  Ante,  §  9. 

2  Story,  Confl.  L.  §§  114,  258  ;  Commonwealth  of  Kentucky  v.  Bassford, 
6  Hill  (N.  Y.),  .526  ;  Thatcher  v.  Morris,  11  N.  Y.  437  ;  Greenwood  v.  Cur- 
tis,  6  Mass.  358,  4  Am.  Dec.  145  ;  Roundtree  ft  Baker,  52  111.  241,  4  Am.  Rep 
597.  But  see  Flagg  v.  Baldwin,  38  N.  J.  Eq.  219,  48  Am.  Rep.  308  ;  Gist  v. 
Tel.  Co.,  45  S.  C.  344,  23  S,  E.  143  ;  Oscanyon  v.  Arms  Co.,  103  U.  8.  261. 


§  177     CONTRACTS   VOID  IN  THE  CONSIDERATION.  425 

solutionis;  for  if  the  contract  is  invalid  in  the  locus  celebra- 
tionis, it  will  be  void  a6  initio,  just  as  in  the  case  where  a  con- 
tract is  formally  invalid  by  the  lex  celebrationis ;  •  there  will 
never  have  been  any  contract  to  perform,  and  therefore  nothing 
for  the  lex  solutionis  to  operate  upon.  On  the  other  hand,  since 
the  matter  of  the  want  of  consideration  enters  into  the  making 
of  the  contract,  so  to  speak,  in  other  words,  since  its  effect 
operates  upon  the  contract  at  the  time  it  is  made,  if  the  contract 
is  then  and  there  valid  the  want  of  consideration  should  not  be 
open  to  question  thereafter  or  under  any  other  law.  Thus,  if  a 
bond  is  given  in  one  State  without  any  consideration,  no  con- 
sideration being  there  required  to  support  a  contract  under  seal, 
and  the  bond  is  payable  in  another  State  where  a  contract,  even 
though  under  seal,  must  be  supported  by  a  consideration,  the 
proper  law  to  determine  the  validity  of  the  contract  is  the  lex 
celebrationis  of  the  contract,  not  the  lex  solutionis.* 

If  the  question  is  not  one  of  a  total  want  of  consideration  in 
the  incipiency  of  the  contract,  but  of  a  subsequent  failure  of  the 
consideration,  the  lex  celebrationis  having  performed  its  func- 
tion in  determining  the  original  validity  of  the  contract,  it 
would  seem  that  the  subsequent  failure  of  consideration  must  be 
regarded  as  affecting  not  the  making  of  the  contract  but  the 
obligation  to  perform  it,  and  the  lex  solutionis  of  the  contract 

3  Ante,  §  172. 

*  In  Pritchard  v.  Norton,  106  U.  S.  124,  135,  136,  a  somewhat  similar 
question  was  decided  in  accordance  with  the  law  of  the  assumed  place  of  per- 
formance of  the  contract.  But  in  that  case  there  had  been  a  benefit  conferred 
upou  the  promisor.  There  was  a  past  consideration,  and  the  question  was 
whether  it  was  sufficient.    This  case  will  be  presently  explained. 

The  example  given  above  in  the  text  is  based  upon  the  theory  that  the  effect 
of  a  seal  in  importing  a  consideration  is  part  of  the  contract  itself,  which  is 
the  view  taken  in  Pritchard  v.  Norton,  supra.  Upon  the  theory  that  the 
presence  of  the  seal  only  affords  a  conclusive  pi-esumption  that  there  is  a  con- 
sideration, it  may  be  that  as  a  mere  matter  of  evidence,  relating  to  the  remedy, 
the  lex  fori  would  control.  If  by  that  law  no  such  presumption  obtains,  there 
must  be  other  proof.  See  Williams  v.  Haines,  27  Iowa,  251.  But  even  if 
this  view  is  sound  (as  it  is  believed  not  to  be),  no  progress  is  here  made.  The 
question  still  remains,  if  there  is  no  proof  of  consideration,  what  law  shall 
govern  the  effect  of  a  want  of  consideration.  The  first  theory  seems  altogether 
preferable. 


426         CONTRACTS   VOID   IN   THE   CONSIDERATION.      §  177 

should  determine  its  effect  upon  the  right  to  enforce  perform- 
ance.* But  the  question  —  what  constitutes  a  subsequent  failure 
of  consideration  —  would  seem  to  depend  upon  the  lex  loci  con- 
sideratiouis,  and  not  upon  the  lex  solutionis  of  the  contract.' 

So,  the  question  of  the  sufficiency  of  certain  acts  or  pre-exist- 
ing liabilities  to  constitute  a  consideration  should  be  deter- 
mined, upon  like  principles,  either  by  the  lex  celebrationis  of 
the  promisor's  contract  (since  the  validity  of  the  contract  in  its 
very  incipiency  depends  upon  it)  or  by  the  law  of  the  place 
where  the  act  is  done  or  the  liability  is  incurred  (since  that  law 
determines  the  effect  of  the  consideration).  Ordinarily  these 
laws  will  be  identical.' 

But  if  an  act  done  in  one  State  constitutes  a  past  considera- 
tion for  a  contract  made  in  another,  we  are  forced  to  chiaose 
between  them.  The  very  question  arose  in  Pritchard  v.  Nor- 
ton,' and  it  was  held  that  the  locus  considerationis,  not  the 
locus  celebrationis,  should  furnish  the  "proper  law."  In  that 
case,   Pritchard  had  signed  an  appeal  bond  in  Louisiana,   no 

'  There  seems  to  be  no  case  directly  in  point,  but  it  is  a  general  principle 
that  the  obligation  and  the  discharge  of  contracts  by  operation  of  law  are  in 
the  main  governed  by  the  lex  solutionis  of  the  contract.  See  post,  §§  181, 
190.  In  Glenn  v.  Thistle,  23  Miss.  42,  49,  a  note  was  made  and  payable  in 
Mississippi  for  the  purchase  of  land  in  Louisiana.  Suit  was  brought  upon  the 
note,  and  the  defense  was  set  up  of  a  failure  of  consideration  by  reason  of  de- 
fects in  the  title  to  the  land.  The  court  said  :  "  The  law  of  Louisiana  will  of 
course  control  the  title  ;  it  will  decide  whether  the  title  has  failed:  but  as  the 
contract  for  payment  was  made  here  and  was  to  be  performed  here,  the  law  of 
this  State  must  decide  on  the  effect  of  a  failure  of  consideration."  If  the  lex 
celebrationis  and  the  lex  solutionis  had  not  been  identical  in  this  case,  the 
question  would  have  been  squarely  presented.  As  it  was,  the  court  did  not 
distinguish  between  them. 

«  See  Glenn  v.  Thistle,  23  Miss.  42,  49,  quoted  supra,  note  5. 

'  If  the  contract  is  made  in  a  State  other  than  that  wherein  the  act  is  done 
(locus  considerationis),  one  of  two  effects  must  follow.  Either  the  act  consti- 
tutes a  past  consideration  for  the  contract,  or  the  immediate  consideration  for 
the  contract  is  not  the  act  itself,  but  some  liability  incurred  by  the  promisor 
because  of  the  performance  of  the  act.  In  the  latter  case  the  act  still  indi- 
rectly constitutes  the  considei-ation  for  the  contract,  whose  validity  in  this 
respect  must  ultimately  depend  upon  the  law  of  the  place  where  the  act  is 
performed.    Ante,  §  162. 

»  106  U.  S.  124. 


§  178      CONTEACTS   VOID   IN   THE   CONSIDERATION.         427 

promise  being  made  at  the  time  to  save  him  harmless.  Later, 
Norton  and  another  signed  a  bond  of  indemnity  in  New  York, 
payable  to  Pritchard,  no  place  of  payment  being  designated. 
By  the  law  of  New  York  a  past  consideration  was  not  sufficient 
to  support  a  contract,  and  a  seal  only  prima  facie  imported  a 
valuable  consideration.  By  the  law  of  Louisiana  the  rule  wag 
otherwise.  Suit  was  instituted  by  Pritchard  in  the  federal 
court  in  Louisiana  upon  the  New  York  bond  of  indemnity,  the 
defense  being  that  there  was  no  sufficient  consideration  (under 
the  law  of  New  York)  to  support  the  contract.  The  Supreme 
Court  held  that  the  law  of  Louisiana  (lex  loci  considerationis) 
should  prevail.' 

§  178.  Same  —  Legality  of  Consideration.  —  With  respect  to 
the  legality  of  the  consideration  as  affecting  the  validity  of  the 
contract,  it  is  quite  certain  that  this  is  to  be  determined  by 
the  lex  loci  considerationis.  No  court,  having  a  just  sense  of 
the  comity  due  to  a  sister  State  or  country,  can  lend  its  aid  in 
enforcing  a  contract,  the  consideration  for  which  is  a  violation 
of  the  law  of  such  sister  State.  It  will  no  more  encourage  the 
violation  of  her  laws  than  of  its  own.  On  the  other  hand,  if  the 
act  or  liability  which  is  the  consideration  for  the  contract  is 
done  or  incurred  in  another  State,  and  is  valid  there,  it  is  mani- 
festly immaterial  whether  or  not  such  act  or  liability,  if  done  or 
incurred  in  the  State  of  the  contract  or  of  the  forum,  would  con- 
travene its  laws.  As  a  matter  of  fact  it  has  not  been  done  or  in- 
curred there,  and  the  laws  of  the  latter  cannot  be  supposed  to 
have  been  intended  to  extend  beyond  its  own  territory  and  con- 
demn acts  done  in  another  State,  unless  indeed  they  are  mala  in 
se  or  contra  bonos  mores.  This  reasoning  inexorably  leads  to 
the  conclusion  that  the  lex  loci  considerationis  determines  the 
validity  of  the  contract,  so  far  as  the  legality  of  the  considera- 

'  It  is  true  the  court  decided  in  favor  of  the  law  of  Louisiana  upon  the 
ground  that  it  was  the  lex  solutionis  of  the  New  York  bond  (though  it  was 
made  in  New  York  and  specified  no  place  of  payment).  The  reasoning  of  the 
court  in  establishing  Louisiana  to  have  been  the  place  of  performance  of  the 
bond  is  not  altogether  satisfactory  ;  and  even  supposing  that  to  be  so,  it  is 
difficult  to  see  why  the  law  of  the  place  of  performance  should  govern  a  ques- 
tion which  relates  to  the  validity  of  the  contract  in  its  very  incipiency. 


428         CONTRACTS   VOID   IN   THE  CONSIDERATION.      §  178 

tion  is  concerned,  and  this  conclusion  is  abundantly  sustained 
by  the  authorities.^ 

Hence  the  validity  of  a  note  made  in  one  State,  though  pay- 
able there  also,  given  in  consideration  of  liquor  sold  and  de- 
livered to  the  maker  of  the  note  in  another  State,  will  be 
determined  by  the  law  of  the  latter  State,  not  of  the  former,  so 
far  as  the  sale  of  the  liquor  affects  it.  The  lex  celebrationis  and 
the  lex  solutionis  have  nothing  to  do  with  the  matter.  The  law 
of  the  place  where  the  liquor  is  sold  will  govern  the  validity  of 
the  sale,  and  the  consequent  validity  of  the  contract  for  the  price. 
If  by  the  lex  loci  considerationis  the  sale  of  the  liquor  is  pro- 
hibited, the  note  is  invalid.^  If  by  that  law  the  sale  is  valid, 
so  will  the  note  be,  though  the  sale  would  have  been  invalid  if 
made  in  the  locus  celebrationis  or  locus  solutionis  of  the  note." 

Thus  also  the  validity  of  a  contract,  the  consideration  for 
which  is  a  gaming  debt  or  the  sale  of  lottery  tickets,  or  the 
prosecution  of  a  lottery,  etc.,  will  depend  not  upon  the  lex  cele- 
brationis or  lex  solutionis  of  the  contract,  but  upon  the  lex  loci 
considerationis.* 

1  "Webber  v.  Howe,  36  Mich.  150,  24  Am,  Rep.  590  ;  Boothby  v.  Plaisted, 
51  N.  H.  436,  12  Am.  Rep.  140  ;  Fessenden  v.  Taft,  65  N.  H.  39,  17  Atl. 
713 ;  Keiwert  v.  Meyer,  62  Ind.  587,  30  Am.  Rep.  206 ;  Pratt  v.  Adams, 
7  Pai.  Ch.  (N.  Y.)  615,  632  ;  Commonwealth  of  Kentucky  w.  Bassford,  6  Hill 
(N.  Y.),  526  ;  Mclntyre  v.  Parks,  3  Met.  (Mass.)  207];  Akers  v.  Demond,  103 
Mass.  318,  323-324;    Suit  v.  Woodhall,  113  Mass.  391  ;  Touro  v.   Cassin, 

I  Nott  &  McC.  (S.  C.)  173,  9  Am.  Dec.  680  ;  Roundtree  v.  Baker,  52  III.  241, 
4  Am.  Rep.  597  ;  Bowles  v.  Field,  78  Fed.  742  ;  The  Brantford  City,  29  Fed. 
373,  395. 

2  Keiwert  v.  Meyer,  62  Ind.  587,  30  Am.  Rep.  206  ;  Dolan  v.  Green,  110 
Mass.  322  ;  Suit  v.  Woodhall,  113  Mass.  391 ;  Weil  v.  Golden,  141  Mass.  364  ; 
Webber  v.  Howe,  36  Mich.  150,  24  Am.  Rep.  590. 

»  Webber  v.  Howe,  36  Mich.  150,  24  Am.  Rep.  590  ;  Hill  v.  Spear,  50 
N.  H.  253,  9  Am.  Rep.  205  ;  Boothby  v.  Plaisted,  51  N.  H.  436,  12  Am. 
Rep.  140  ;  Abberger  v.  Marrin,  102  Mass.  70  ;  Tegler  v.  Shipman,  33  la.  194, 

II  Am.  Rep.  118  ;  Fred  Miller  Brewing  Co.  v.  De  France,  90  la.  395,  57  N.  W. 
959. 

*  Thatcher  v.  Norris,  11  N.  Y.  437  ;  Commonwealth  of  Kentucky  v.  Bass- 
ford,  6  Hill  (N.  Y.),  526  ;  Mclntyre  v.  Parks,  3  Met.  (Mass.)  207  ;  Sondheira 
V.  Gilbert,  117  Ind.  71,  18  N.  E.  687.  But  see  Robinson  t;.  Bland,  2  Burr, 
1077  ;  Flagg  v.  Baldwin,  38  N.  J.  Eq.  219,  48  Am.  Rep.  308 ;  Gist  v.  Tel.  Co, 
45  S.  C.  344,  23  S.  E.  143. 


§  179  USURIOUS   CONSIDERATIONS.  429 

So  the  validity  of  a  bond  or  other  contract,  the  consideration 
of  which  is  the  sale  or  hire  of  slaves  or  a  policy  of  insurance 
upon  a  slave  ship,  will  depend  upon  the  law  of  the  place  where 
the  sale  or  hire  takes  place  or  the  contract  of  insurance  is  made.* 

In  Atlantic  Phosphate  Co.  u.  Ely,'  fertilizers  were  ordered 
from  South  Carolina  by  a  farmer  living  in  Georgia,  under  such 
circumstances  that  the  sale  was  held  to  take  place  in  South 
Carolina,  the  purchaser  executing  a  note  in  Georgia  for  the 
price.  The  law  of  Georgia  avoided  sales  of  fertilizers  which 
had  not  been  inspected  before  being  offered  for  sale  or  dis- 
tribution. The  sale  was  valid  in  South  Carolina.  In  a  suit 
in  Georgia  upon  the  note  it  was  urged  that  the  fertilizers  had 
not  been  inspected,  but  the  Georgia  court  held  that  the  validity 
of  the  note  depended  upon  the  law  of  South  Carolina,  not  upon 
the  law  of  Georgia. 

§  179.  Usurious  Considerations.  —  There  is  probably  no  point 
within  the  whole  range  of  the  law  upon  which  there  exist  greater 
conflicts  of  views,  more  irreconcilable  opinions,  or  greater  con- 
fusion of  statement,  than  upon  the  proper  law  to  govern  the 
effect  of  alleged  usury  in  a  contract.  The  natural  difficulties 
which  beset  the  subject  have  been  immeasurably  increased  by 
the  looseness  of  phraseology  indulged  by  the  courts. 

Let  us  suppose  for  example  a  case  like  the  following :  A  citi- 
zen of  Texas  comes  to  New  York  and  there  borrows  money,  it 
being  understood  that  he  is  to  pay  eight  per  cent  interest.  He 
returns  to  Texas,  and  there  j  executes  a  note  payable  in  New 
York  for  the  principal  sum  with  eight  per  cent  interest.  We 
will  suppose  further  that  the  law  of  New  York  avoids  all  con- 
tracts carrying  more  than  six  per  cent,  while  the  law  of  Texas 
permits  eight  per  cent. 

As  has  been  already  shown,  the  validity  of  a  particular  act 
does  not  in  general  depend  upon  whether  or  not  the  parties 
intend  to  do  a  valid  act.  The  intent  is  of  importance  iu  ascer- 
taining what  act  the  parties  propose  to  perform,  but  that  once 

*  Roundtree  v.  Baker,  52  111.  241,  4  Am.  Rep,  597  ;  Greenwood  v.  Curtis, 
6  Mass.  358,  4  Am.  Dec.  145  ;  Touro  v.  Cassin,  1  Nott  &  McC.  (S.  C.)  17% 
d  Am.  Dec.  680. 

«  82  Ga.  438,  9  S.  E.  170. 


430  USURIOUS   CONSIDERATIONS.  §  179 

ietermined  definitely,  the  validity  of  the  act  depends  entirely 
apon  the  law  governing  the  territory  wherein  the  act  is  done. 
But  to  this  general  principle  there  may  be  exceptions  in  cases 
where  the  gist  of  the  illegality  of  the  particular  act  lies  in  the 
intention  with  which  it  is  done.  Such  to  a  certain  extent  is 
lihe  case  with  usurious  contracts.  The  intention  to  exact  usu- 
rious interest,  contrary  to  law,  is  an  essential  ingredient  of 
usury. ^  Nor  must  it  be  forgotten  that,  unless  there  is  real 
oppression  of  the  debtor  and  advantage  taken  of  him,  usury  is  a 
more  or  less  odious  defense,  which  the  courts  will  not  go  out  of 
their  way  to  enforce.  Another  point  to  be  noticed  in  this  con- 
nection is  the  fact  that  the  rate  of  interest  prescribed  by  the 
laws  of  a  particular  State  is  fixed  arbitrarily  by  the  legislature, 
as  being  on  the  whole  best  suited  to  its  own  people.  Save  for 
the  arbitrary  decree  of  the  legislature,  there  would  be  nothing 
illegal  or  immoral  in  charging  a  somewhat  higher  rate  of  in- 
terest. It  is  a  matter  with  regard  to  which  the  policies  of 
different  States  vary  infinitely. 

Considerations  like  those  above  mentioned  have  led  many  of 
the  courts  to  lean  towards  sustaining  such  contracts,  if  possible, 
and  to  hold  that  it  is  sufficient  if  the  contract  is  valid  either  by 
the  law  of  the  place  where  it  is  entered  into  or  where  it  is  to  be 
performed.'' 

1  Balfour  v.  Davis,  14  Or.  47,  12  Pac.  89.  Hence  if  a  contract  reserves 
excessive  interest  merely  because  of  a  mistaken  calculation,  it  is  not  for  that 
reason  usurious.  There  must  be  an  intention  to  charge  the  illegal  rate.  See 
Lloyd  V.  Scott,  4  Pet.  205 ;  Bevier  v.  Covell,  87  N.  Y.  50 ;  Smythe  v.  Allen, 
67  Miss.  146,  6  So.  627  ;  Bearce  v.  Barstow,  9  Mass.  45  ;  Price  v.  Cam})bell, 
2  Call  (Va.),  110  ;  McElfatrick  v.  Hicks,  21  Penn.  St.  402  ;  Brown  v.  Bank, 
86  la.  527,  53  N.  W.  410 ;  Henry  v.  Sansora,  2  Tex.  Civ.  App.  150,  21 
S.  W.  69. 

^  The  leading  case  taking  this  view  is  Miller  v.  TiflFany,  1  Wall.  298,  310. 
In  that  case  the  court  said  :  "  '  The  general  principle  in  relation  to  contracts 
made  in  one  place  to  be  performed  in  another  is  well  settled.  They  are  to  be 
governed  by  the  law  of  performance,  and  if  the  interest  allowed  by  the  law  of 
the  place  of  performance  is  higher  than  that  permitted  at  the  place  of  contract, 
the  parties  may  stipulate  for  the  higher  interest  without  incurring  the  penalties 
for  usury.'  The  converse  of  this  proposition  is  also  well  settled.  If  the  rate 
of  interest  be  higher  at  the  place  of  contract  than  at  the  place  of  performance, 
the  parties  may  lawfully  contract  in  that  case  also  for  the  higher  rate."     See 


§  179  USURIOUS   CONSIDERATIONS.  431 

Some  of  the  cases  even  go  further,  laying  hold  of  the  slightest 
Circumstances  in  connection  with  the  transaction  to  show  that 
the  parties  intended  to  enter  into  a  contract  free  from  the  taint 
of  usury,  though  the  rate  of  interest  charged  be  usurious  both 
by  the  lex  celebrationis  and  the  lex  solutionis  of  the  contract. 
Thus,  the  fact  that  the  note  is  secured  by  a  mortgage  on  land 
in  a  State  where  the  rate  of  interest  charged  is  legal,*  or  that  the 
borrowed  money  is  to  be  used  in  a  State  whose  law  permits  the 
rate  charged,*  has  sometimes  been  held  sufficient  to  uphold 
the  contract. 

But,  notwithstanding  much  confusion  in  the  terms  used  and 
in  the  statement  of  the  controlling  principles,  the  current  ot 
decision  seems  to  look  rather  to  the  actual  situs  of  the  acts  in 
question  to  furnish  the  "proper  law"  than  to  the  intention  oi 
the  parties. 

Passing  by  the  intent  then,  in  order  to  ascertain  the  situs 
that  shall  furnish  the  proper  law  we  must  first  determine  to 
what  element  in  the  validity  of  a  contract  the  matter  of  usury 
pertains.  Does  it  relate  to  the  making  of  the  contract  itself, 
to  its  performance,  or  to  the  consideration  f 

Although  there  are  a  few  cases  holding  that  the  validity  of 
a  contract  alleged  to  be  usurious  is  to  be  governed  by  the  lex 

Cromwell  v.  County  of  Sac,  96  U.  S.  51,  62  ;  Cockle  v.  Flack,  93  U.  S,  344. 
This  may  probably  be  said  to  be  the  view  of  the  United  States  Supreme  Court. 
See  also  Kilgore  v.  Dempsey,  25  Ohio  St.  413,  18  Am.  Rep.  306 ;  American 
Mortg.  Co.  V.  Sewell,  92  Ala.  163,  9  So.  143,  145-146  ;  Dugan  v.  Lewis,  79  Tex. 
246,  14  S.  W.  1024, 1026  ;  Nickels  v.  Association,  93  Va.  380,  387,  25  S.  E.  8  ; 
Scott  V.  Perlee,  39  Ohio  St.  63,  48  Am.  Rep.  421,  422  ;  Morris  v.  Hockaday, 
94  N.  C.  286,  55  Am.  Rep.  607,  608  ;  Mott  v.  Rowland,  85  Mich.  561,  48  N.  W. 
638 ;  Smith  v.  Parsons,  55  Minn,  520,  57  N.  W,  311,  312  ;  Hunt  v.  Jones,  12 
R.  I.  265,  34  Am.  Rep.  635,  637  ;  B.  &  L.  Association  v.  Logan,  14  C.  C.  A. 
133,  66  Fed.  827,  829 ;  New  England  Mortg.  Co.  v.  Vaden,  28  Fed.  265. 

8  Chapman  v.  Robertson,  6  Pai.  Ch.  (N.  Y.)  627,  31  Am.  Dec.  264  ;  Dugan 
V.  Lewis,  79  Tex.  246,  14  S.  AV.  1024  ;  Jackson  v.  Mortg.  Co.,  88  Ga.  756,  15 
S.  E.  812  ;  Arnold  v.  Potter,  22  la.  195  ;  Kellogg  r.  Miller,  13  Fed.  198.  But 
see  Mortg.  Co.  v.  Jefferson,  69  Miss.  770,  12  So.  464;  Odom  v.  Mortg.  Co., 
91  Ga.  505,  18  S.  E.  131  ;  De  Wolf  v.  Johnson,  10  Wheat.  367,  383. 

*  Scott  V.  Perlee,  39  Ohio  St.  63,  48  Am.  Rep.  421  ;  Kellogg  v.  Miller,  13 
Fed.  198,  200.  But  s^e  Central  Trust  Co.  v.  Burton,  74  Wis.  329,  43  N.  W. 
Ul. 


432  USURIOUS   CONSIDERATIONS.  §  179 

celebrationis  of  the  contract,  regardless  of  the  lex  solutionis  or 
lex  considerationis,^  reason,  as  well  as  the  great  mass  of  author- 
ity, indicates  that  the  effect  of  the  exaction  of  usurious  interest 
upon  the  contract  to  repay  does  not  depend  upon  the  law  of  the 
place  where  such  contract  is  made  (apart  from  the  locus  solu- 
tionis or  locus  considerationis).® 

We  are  brought  then  to  the  consideration  of  the  question 
whether  the  matter  of  usury  affects  the  performance  of  the  con- 
tract to  pay,  or  whether  it  affects  the  consideration.  In  other 
words,  why  is  a  contract  to  pay  excessive  interest  invalid  ? 
Does  the  usury  consist  in  the  borrower's  promise  to  repay  the 
principal  with  excessive  interest  ?  Or  does  it  consist  in  the 
loan  or  forbearance  of  money  upon  condition  that  the  borrower 
will  repay  the  principal  with  excessive  interest  ?  The  dis- 
tinction here  is  close  but  important,  if  we  regard  the  situs  of 
the  transaction,  not  the  intent  of  the  parties,  as  furnishing  the 
proper  law. 

If  the  first  view  is  correct,  the  alleged  usuriousness  and  in- 
validity of  the  contract  to  pay  relates  to  its  performance,  the 
payment  of  the  excessive  interest,  and  the  validity  of  the  pay- 
ment of  the  interest  agreed  upon  should  be  determined  by  the 
law  of  the  place  where  the  act  of  payment  is  to  be  performed, 
that  is,  by  the  lex  solutionis  of  the  contract  to  pay.' 

If  the  second  view  is  correct,  the  usury  relates  to  the  con' 

'  New  England  Mortg.  Co.  v.  McLaughlin,  87  Ga.  1,  13  S.  E.  81 ;  Thorn- 
ton V.  Dean,  19  S.  C.  583,  45  Am.  Rep.  796 ;  Kellogg  v.  Miller,  13  Fed.  198. 
Even  these  cases  are  based  upon  the  intention  of  the  parties  or  upon  some  other 
ground  than  merely  that  the  lex  celebrationis  of  the  contract  governs. 

*  The  authorities  cited  below  amply  sustain  this  proposition. 

^  A  number  of  courts  take  this  view  and  hold  that  the  lex  solutionis  of  the 
contract,  of  itself,  without  regard  to  the  lex  celebrationis  or  the  lex  considera- 
tionis,  will  govern  the  matter  of  usury.  See  Hosford  v.  Nichols,  1  Pai.  Ch 
(N.  Y.)  220 ;  Chapman  v.  Robertson,  6  Pai.  Ch.  (N.  Y.)  627,  630,  31  Am. 
Dec.  264 ;  Odom  v.  Mortg.  Co.,  91  Ga.  505,  18  S.  E.  131  ;  Connor  v.  Donnell, 
55  Tex.  174;  Dickinson  v.  Edwards,  77  N.  Y.  573,  578,  582,  33  Am.  Rep, 
671  ;  Nickels  r.  Association.  93  Va,  380,  25  S.  E.  8  ;  National,  etc.  Associa- 
tion V.  Ashworth,  91  Va.  706,  22  S.  E.  521 ;  Freese  v.  Brownell,  35  N.  J.  L. 
285,  10  Am.  Rep.  239,  241 ;  Pioneer  Sav.  &  L.  Co.  v.  Cannon,  96  Tenn.  599, 
36  S.  W.  386  ;  Kellogg  ».  Miller,  13  Fed.  198,  199.  See  Bigelow  r.  Burnham. 
83  la.  120,  49  N.  W  104. 


§  179  USURIOUS  CONSIDERATIONS.  433 

sideration  (the  loan  of  the  money),  and  the  law  of  the  place 
where  the  money  is  delivered  to  the  borrower  governs  the  valid- 
ity of  the  contract  to  pay.  Just  as  the  validity  of  a  note  made 
and  payable  in  one  State,  given  in  payment  for  liquor  sold,  de- 
pends not  upon  the  lex  celebrationis  or  lex  solutionis  of  the 
note,  but  upon  the  lex  loci  considerationis  (the  law  of  the  situs 
of  the  sale) ;  *  so,  in  this  case,  the  validity  of  the  note  or  prom- 
ise to  repay  the  money  borrowed,  wiU  depend  not  upon  the  lex 
celebrationis  or  lex  solutionis  of  the  note  or  other  promise,  but 
upon  the  lex  loci  considerationis  (the  law  of  the  situs  of  the 
loan).  This  is  believed  to  be  the  better  view.  The  policy  of 
the  usury  laws  is  aimed  against  the  exaction  of  usurious  inter- 
est by  the  lender,  not  against  the  promise  by  the  debtor  to  pay 
usurious  interest.  The  great  majority  of  the  decided  cases  have 
held  that  the  law  of  the  place  where  the  money  is  lent  governs 
the  question  of  usury,  though  comparatively  few  have  rested 
their  decision  expressly  upon  this  ground.' 

8  See  ante,  §178. 

9  In  some  of  the  cases  emphasis  is  laid  upon  the  lex  considerationis  as  gov- 
erning the  question,  though  the  lex  celehrationis  and  the  lex  solutionis  of  the 
note,  or  one  of  them,  were  the  other  way.  See  Alters  v.  Demond,  103  Mass. 
318,  323-324 ;  Bowman  v.  Miller,  25  Gratt,  (Va.)  331,  18  Am.  Rep.  686  ; 
Sheldon  v.  Haxtun,  91  N.  Y.  124,  128-129,  131 ;  Pratt  v.  Adams,  7  Pai.  Ch. 
(N.  Y.)  615,  632 ;  Kilcrease  v.  Johnson,  85  Ga.  600,  11  S.  E.  870  ;  Martin  v. 
Johnson,  84  Ga.  481,  10  S.  E.  1092,  8  L.  R.  A.  170  ;  Matthews  v.  Paine,  47 
Ark.  54,  14  S.  W.  463 ;  Hiatt  v.  Griswold,  5  Fed.  573,  575  ;  DeWolf  v.  John- 
son, 10  Wheat.  367,  383.  In  some,  the  loan  was  made  in  the  State  where  the 
contract  was  payable,  though  the  contract  itself  was  made  elsewhere.  The  law 
of  the  situs  of  the  loan  prevailed.  See  Bennett  v.  B.  &  L.  Association,  177 
Penn.  St.  233,  34  L.  R.  A.  595,  35  Atl.  684,  685  ;  Sands  v.  Smith,  1  Neb.  108, 
93  Am.  Dec.  331  ;  Roberts  v.  McNeely,  7  Jones  L.  (N.  C.)  506,  78  Am.  Dec. 
261  ;  Pugh  V.  Cameron,  11  W.  Va.  523.  In  most  of  the  cases  that  have  arisen, 
the  locus  celebrationis  of  the  contract  and  the  locus  considerationis  (the  place 
where  the  money  was  advanced)  have  been  identical,  and  have  been  different 
from  the  locus  sohUionis  of  the  promise  to  repay.  The  lex  loci  coTisiderationis 
has  again  prevailed,  though  the  decision  is  often,  indeed  generally,  rested  upon 
other  grounds.  See  Andrews  v.  Pond,  13  Pet.  65,  78 ;  Tilden  v.  Blair,  21 
Wall.  241 ;  Sturdivant  v.  Bank,  9  C.  C.  A.  256,  60  Fed.  730  ;  Buchanan  v. 
Bank,  5  C.  C.  A.  83,  55  Fed,  223,  227  ;  Kuhn  v.  Morrison,  75  Fed.  81  ;  Van 
Vleet  V.  Sledge,  45  Fed.  743  ;  Brown  v.  Finance  Co.,  31  Fed.  516,  519  ;  Hiatt 
V.  iJriswold,  5  Fod.  573,  575  ;  Watson  v.  Lane,  52  N,  J.  L.  550,  20  Atl.  894  ; 

28 


434  USURIOUS  CONSroERATIONS.  §  17b 

In  no  case  has  this  view  been  brought  out  more  plainly  than 
in  Akers  v.  Demond.^"  In  that  case,  bills  of  exchange,  drawn 
in  New  York,  and  payable  in  Massachusetts,  were  accepted  in 
Massachusetts  for  the  accommodation  of  the  drawer,  and  re- 
turned to  New  York,  where  they  were  discounted  at  a  rate  of 
interest  usurious  in  New  York.  Suit  was  brought  against  the 
acceptor  in  Massachusetts  by  the  holder  (the  lender).  Here  it 
will  be  seen  that  while  Massachusetts  was  the  lex  solutionis  of 
the  acceptor's  contract.  New  York  was  the  place  where  the 
money  was  advanced  (locus  considerationis)  and  the  locus  cele- 
brationis of  the  acceptor's  contract.     The  court,  holding  that 

Lane  v.  Watson,  51  N.  J.  L.  186,  17  Atl.  117 ;  Depau  v.  Humphreys,  20  Mart. 
(La.)  1;  Holmes  v.  Manning  (Mass.),  19  N.  E.  25;  Akers  u.  Demond,  103 
Mass.  318,  323  ;  Staples  v.  Nott,  128  N.  Y.  403,  28  N.  E.  515;  Sheldon  v. 
Haxtun,  91  N.  Y.  124,  128 ;  Wayne  County  Bank  v.  Low,  81  N.  Y.  566,  37 
Am.  Rep.  533  ;  Merchants'  Bank  v.  Griswold,  72  N.  Y.  472,  480,  28  Am.  Rep. 
159  ;  Curtis  v.  Leavitt,  15  N.  Y.  9,  86  ;  Pratt  v.  Adams,  7  Pai.  Ch.  (N.  Y.) 
615,  632  ;  Balme  v.  Wombough,  38  Barb.  352  ;  Kilgore  v.  Dempsey,  25  Ohio 
St.  413,  18  Am.  Rep.  306  ;  Findley  v.  Hall,  12  Ohio,  610  ;  Bascom  v.  Zediker, 
48  Neb.  380,  67  N.  W.  148  ;  Joslin  v.  Miller,  14  Neb.  91,  15  N.  W.  214  ; 
Olmstead  v.  Mortg.  Co.,  11  Neb.  493,  9  N.  W.  650,  652;  Overton  v.  Bolton, 
9  Heisk.  (Tenn.)  762,  24  Am.  Rep.  367,  374-375  ;  Klinck  v.  Price,  4  W.  Va. 
4,  6  Am.  Rep.  268  ;  U.  S.  Sav.  &  L.  Association  v.  Scott,  98  Ky.  695,  34  S.  W. 
235  ;  Southern  B.  &  L.  Association  v.  Harris,  98  Ky.  41,  32  S.  W.  261  ;  Pryse 
r.  Association  (Ky.),  41  S.  W.  574 ;  Underwood  v.  Mortg.  Co.,  97  Ga.  238, 
24  S.  E.  847 ;  New  England  Mortg.  Co.  v.  McLaughlin,  87  Ga.  1,  13  S.  E.  81; 
Kilcrease  v.  Johnson,  85  Ga.  600,  11  S.  E.  870  ;  Martin  v.  Johnson,  84  Ga. 
481,  10  S.  E.  1092,  8  L.  R.  A.  170 ;  Meroney  v.  B.  &  L.  Association  (N.  C), 
17  S.  E.  637 ;  Falls  v.  Sav.  &  L.  Co.,  97  Ala.  417,  13  So.  25,  27 ;  American 
Mortg.  Co.  V.  Sewell,  92  Ala.  163,  9  So.  143.  A  fortiori,  in  the  cases  where 
the  locus  celebrationis,  the  locus  solutionis,  and  the  locus  considerationis  all 
coincide,  the  law  of  that  State,  not  the  lex  fori,  will  govern  the  question  of 
usury.  See  Glidden  v.  Chamberlin,  167  Mass.  486,  46  N.  E.  103 ;  Bowman  v. 
Miller,  25  Gratt.  (Va.)  331,  18  Am.  Rep.  686  ;  Backhouse  v.  Selden,  29  Gratt. 
(Va.)  581  ;  Fant  v.  Miller,  17  Gratt.  (Va.)  47  ;  Berrien  v.  Wright,  26  Barb. 
(N.  Y.)  208  ;  Pomeroy  v.  Ainsworth,  22  Barb.  118  ;  Maynardw.  Hall,  92  Wis. 
565,  66  N.  W.  715 ;  Central  Trust  Co.  v.  Burton,  74  Wis.  329,  43  N.  W.  141, 
142  ;  Kennedy  v.  Knight,  21  Wis.  340,  94  Am.  Dec.  543  ;  Armistead  v.  Blythe 
(Miss.),  20  So.  298  ;  Hubbell  v.  Morristown  Land  &  Imp.  Co.,  95  Tenn.  585, 
32  S.  W.  965  ;  Hart  v.  Wills,  52  la.  56,  35  Am.  Rep.  265 ;  Lockwood  v. 
Mitchell,  7  Ohio  St.  387,  70  Am.  Dec.  78. 
w  103  Mass.  318. 

3Ji  ~  /I. 


r  IT 


§  179  USURIOUS   CONSIDERATIONS.  435 

the  New  York  law  governed,  said:  "  When  a  usurious  or  other 
illegal  consideration  is  declared  by  the  law  of  any  State  to  be 
incapable  of  sustaining  any  valid  contract,  and  all  contracts 
arising  therefrom  are  declared  void,  such  contracts  are  not  only 
void  there,  but  void  everywhere.  They  never  acquire  a  legal  ex- 
istence. Contracts  founded  on  a  usurious  consideration  in  New 
York  are  of  this  nature.  The  fact  that  the  bills  were  accepted 
in  Boston  and  were  payable  there  does  not  exempt  them  from  this 
operation  of  the  New  York  law.  They  were  mere  *  nude  pacts  ' 
with  no  legal  validity  or  force  as  contracts  until  a  consideration 
was  paid.  The  only  consideration  ever  paid  was  the  usurious 
loan  made  by  these  plaintiffs  in  New  York.  That,  then,  was 
the  legal  inception  of  the  alleged  contracts.  By  the  New  York 
law  that  transaction  was  incapable  of  furnishing  a  legal  con- 
sideration; and  so  far  as  the  bills  depend  upon  that,  they  are 
absolutely  void.  The  original  validity  of  sugh  g.  contract  miigt^ 
be  determined  by  the  law  of  the  State  in  which  it  is  first  negoti- 
ated or  delivered  as  a  contract. 


The  fact  that  usury  is  a  matter  oi  the  consideration,  not  of 
the  performance,  of  the  contract,  becomes  more  evident,  if  we 
suppose  the  excessive  interest  to  be  reserved  out  of  the  principal 
sum  at  the  time  of  the  loan,  or  upon  discounting  paper.  It  is 
manifest  in  such  a  case  that  the  subsequent  execution  of  a  note 
as  security,  whether  made  in  the  same  State  or  elsewhere,  can- 
not affect  the  legality  or  illegality  of  the  original  act.  That  is 
over  and  done  with,  and  its  effect  must  be  determined  by  the 
law  of  the  State  where  the  reservation  is  made,  that  is,  where 

"  Even  in  this  case,  it  will  be  observed,  while  the  court  gives  full  efifect  to 
the  lex  considerationis  as  determining  the  matter  of  usury,  the  last  sentence 
of  the  extract  above  quoted  reverts  to  the  fallacy  that  the  law  of  New  York 
should  govern,  not  because  it  is  the  lex  considerationis,  but  because  it  is  the 
lex  celebrationis,  of  the  contract.  It  is  true  that  the  locus  celebrationis  of  the 
contract  will  usually  be  identical  with  the  locus  considerationis  (as  it  was  in 
Akers  r.  Demond),  and  in  such  case,  save  for  the  sake  of  clearness,  it  is  im- 
material whether  the  proper  law  is  called  the  lex  celebrationis  or  the  lex  con- 
siderationis. But  these  two  loci  are  not  necessarily  identical,  as  shown  by  the 
cases  cited  in  note  9,  supra.  Confusion  must  inevitably  arise  if  these  van* 
DOS  loci  are  not  kept  clear  and  distinct. 


/^ 


436  USUBIOUS   CONSIDEBATIONS.  §  179 

the  money  is  advanced."  Yet  the  consideration  for  the  contract 
may  be  exactly  the  same  without  reserving  the  interest  in  ad- 
vance. In  either  case  the  consideration  for  the  promise  to  pay 
is  the  loan  or  forbearance  of  money  at  an  excessive  rate  of 
interest. 

The  same  principles  govern  a  note  given  in  renewal  of  a  pre- 
vious note  or  obligation  to  pay.  The  validity  of  the  first  note 
is  determined  by  the  lex  considerationis,  the  law  of  the  place 
where  the  money  is  advanced;  and  the  validity  of  the  renewal 
note  is  governed  also  by  its  own  lex  considerationis.  But  the 
consideration  for  the  renewal  note  is  the  previous  note,  and  if 
that  is  usurious  and  invalid  by  its  proper  law,  so  should  the  re- 
newal note  be,  and  vice  versa}^ 

Sometimes  the  parties  conduct  the  negotiations  for  the  loan 
in  one  State,  while  the  money  is  actually  advanced  in  another. 
In  such  cases  a  question  arises  whether  the  law  of  the  former 
or  latter  State  is  to  govern  the  rate  of  interest.  The  considera- 
tion here  supposed  is  not  an  executed  loan,  but  an  executory 
contract  to  loan  the  money  at  a  certain  rate  of  interest.  If 
the  loan  is  to  be  actually  made  in  the  State  where  the  agree- 
ment to  lend  is  entered  into,  there  can  be  no  question  but  that 
the  law  of  that  State  should  control." 

w  TUden  v.  Blair,  21  WaU.  241  ;  Akers  v.  Demond,  103  Mass.  318,  323  ; 
Kilcrease  v.  Johnson,  85  Ga.  600,  11  S.  E.  870  ;  Martin  v.  Johnson,  84  Ga. 
481,  10  S.  E.  1092,  8  L.  R.  A.  170  ;  Buchanan  v.  Bank,  5  C.  C.  A.  83,  55 
Fed.  223,  227  ;  Sheldon  v.  Haxtun,  91  N.  Y.  124.  But  see  Dickinson  v. 
Edwards,  77  N.  Y.  573,  33  Am,  Rep.  671 ;  "Wayne  County  Bank  v.  Low,  81 
N.  Y.  566,  37  Am.  Rep.  533. 

18  Wayne  County  Bank  v.  Low,  81  N.  Y.  566,  37  Am.  Rep.  533  ;  Bowman 
V.  Miller,  25  Gratt.  (Va.)  331,  18  Am.  Rep.  686.  But  some  courts,  relying  on 
the  principle  that  a  renewal  note  given  in  exchange  for  a  usurious  note,  after 
purging  the  latter  of  the  excessive  interest,  is  good,  hold  that  the  giving  of  a 
renewal  note  in  a  State  by  whose  law  the  interest  carried  by  the  first  usurious 
note  is  not  excessive,  operates  in  the  same  way  to  purge  the  usury  and  to  make 
the  renewal  note  good.  See  Jacks  v.  Nichols,  5  Barb.  (N.  Y.)  38  ;  Sheldon  v. 
Haxtun,  91  N.  Y.  124,  131  ;  De  Wolf  v.  Johnson,  10  Wheat.  367.  In  the 
last  case  however  there  was  an  actual  reduction  of  interest  upon  the  renewal. 

"  Martin  v.  Johnson,  84  Ga.  481,  10  S.  E.  1092,  1093,  8  L.  R.  A.  170 ; 
Staples  V.  Nott,  128  N.  Y.  403,  405-406,  28  N.  E.  515 ;  Wayne  County  Bank 
V.  Low,  81  N.  Y.  566,  .571,  37  Am.  Rep.  538  ;  Berrien  r.  Wright,  26  Barb. 
(N.  Y.)  208. 


§  179  USURIOUS   CONSIDERATIONS.  437 

But  if  it  is  expressly  or  impliedly  agreed  that  the  money  is  to 
be  actually  advanced  in  another  State,  that  is  to  say,  if  the  ex- 
ecutory consideration  is  to  be  performed  in  another  State,  the 
validity  of  its  performance  there  must  be  determined  by  the  lex 
solutionis  of  the  consideration  (the  law  of  the  place  where  the 
loan  is  to  be  made).^^ 

The  case  of  Hubbell  v.  Morristown  Land  &  Imp.  Co."  pre- 
sents a  good  illustration  of  this  principle.  In  that  case  the 
loan  was  originally  agreed  upon  between  Mrs.  Hubbell  and  the 
borrower,  in  Connecticut,  where  Mrs.  Hubbell  was  **  summer- 
ing." The  borrower  was  a  Tennessee  corporation,  and  it  was 
agreed  that  the  loan  to  be  thereafter  made  should  bear  seven 
per  cent  interest  and  should  be  secured  on  the  corporation's 
land  in  Tennessee.  The  note  evidencing  the  loan  was  drawn  in 
^orth  Carolina  and  was  made  payable  in  New  Jersey,  where 
Mrs.  Hubbell  lived.  This  note  was  delivered  and  the  money 
actually  advanced  in  New  Jersey,  in  pursuance  of  the  contract 
to  lend.  By  the  law  of  Tennessee  and  of  New  Jersey  the  con- 
tract was  usurious;  by  the  law  of  Connecticut  and  of  North 
Carolina  it  was  valid.  The  trial  court  decided  that  the  law  of 
New  Jersey  should  govern.  The  Tennessee  Court  of  Chancery 
Appeals  reversed  this  decision,  and  held  in  favor  of  the  Con- 
necticut law.  This  in  turn  was  reversed  by  the  Supreme  Court 
of  the  State,  which  returned  to  the  law  of  New  Jersey  as  the 
place  where  the  loan  was  finally  consummated. 

1*  Hubbell  V.  Morristown  Land  &  Imp.  Co.,  95  Tenn.  585,  32  S.  W.  965 ; 
Sheldon  v.  Haxtun,  91  N.  Y.  124,  128-129  ;  Bascom  v.  Zediker,  48  Neb.  380, 
67  N.  W.  148  ;  Coad  v.  Home  Cattle  Co.,  32  Neb.  761,  49  N.  W.  757.  But 
see  Mott  v.  Rowland,  85  Mich.  561,  48  N.  W.  638  ;  Scott  v.  Perlee,  39  Ohio 
St.  63,  48  Am.  Rep.  421.  Both  of  the  last  two  cases  go  upon  the  theory  that 
the  law  which  the  parties  "had  in  mind"  as  goveming  the  contract  should 
control. 

16  95  Tenn.  585,  32  S.  W.  9«5. 


438  OBLIGATION   OF  CONTRACTS  —  ClilTBRION.       §  180^ 


CHAPTER  XVIII. 

OBLIGATION  AND  INTERPRETATION  OP  CONTRACTS. 

§  180.  Obligation  of  a  Contract.  —  We  have  in  the  preced- 
ing chapter  considered  the  "proper  law  "  governing  the  validity 
of  a  contract.  We  will  now  suppose  it  to  be  established  that 
the  contract  is  valid  in  every  particular,  and  will  proceed  to- 
examine  the  law  controlling  the  rights,  duties,  and  liabilities  of 
the  parties  under  it. 

The  "  obligation  "  of  a  contract  is  defined  by  Judge  Story  as 
•'  the  duty  to  perform  it."  ^  In  reality,  however,  the  term  has  a 
somewhat  broader  meaning  than  that  ascribed  to  it  by  Story. 
It  implies  a  duty  on  the  part  of  the  promisor  to  perform  the 
contract  in  manner  and  form  according  to  its  terms  or  the  true 
intent  of  the  parties,  and  a  corresponding  right  on  the  part  of 
the  promisee  to  expect  such  a  performance. 

The  "obligation  of  the  contract,"  as  here  used  (excluding 
matters  of  validity,  already  discussed),  has  the  same  meaning 
as  is  attached  to  the  same  phrase  found  in  that  clause  of  the 
federal  constitution  which  provides  that  no  State  shall  pass  any 
law  impairing  the  obligation  of  contracts.* 

1  Story,  Confl.  L.  §  266.  He  proceeds  to  describe  it  further  as  follows  : 
"  It  may  be  a  moral  obligation,  or  a  legal  obligation,  or  both.  But  when  we 
speak  of  obligation  generally  we  mean  legal  obligation,  that  is,  the  right  of  per- 
formance which  the  law  confers  on  one  party  and  the  corresponding  duty  of 
performance  to  which  it  binds  the  other.  ...  A  contract  may  in  its  nature 
be  purely  voluntary  and  possess  no  legal  obligation.  It  may  be  a  mere  naked 
pact  (nudum  pactum).  It  may  possess  a  legal  obligation  ;  but  the  laws 
may  limit  the  extent  and  force  of  that  obligation  in  personam  or  in  rem.  It 
may  bind  the  party  personally,  but  not  bind  his  estate  ;  or  it  may  bind  his  es- 
tate and  not  bind  his  person.  This  obligation  may  be  limited  in  its  operation 
or  duration  ;  or  it  may  be  revocable  or  dissoluble  in  certain  future  events  or 
under  peculiar  circumstances." 

'  Hence,  if  the  question  in  a  particular  case  is  whether  the  point  before  the 


§  180       OBLIGATION   OF   CONTRACTS  —  CRITERION.  439 

A  practical  test  therefore  by  which  to  determine  whether  a 
particular  matter  relating  to  a  contract  constitutes  a  part  of  its 
^* obligation"  or  a  part  of  the  remedy  merely,  is  to  examine 
whether  the  legislature  of  the  State  whose  law  governs  the  obli- 
gation of  the  contract  could,  by  enactment  subsequent  to  the 
execution  of  the  contract,  make  applicable  to  it  a  law  similar  to 
that  sought  to  be  enforced  in  the  forum.  If  such  a  retrospec- 
tive law  passed  in  the  proper  situs  of  the  contract  would  not  im- 
pair its  obligation  nor  violate  the  provision  of  the  constitution, 
the  matter  must  be  held  to  relate  not  to  the  obligation  but  to 
the  remedy,  and  the  lex  fori  will  prevail.  But  if  such  a  retro- 
active law  as  the  lex  fori,  passed  in  the  situs  of  the  contract, 
would  be  unconstitutional  as  impairing  its  obligation,  the  same 
law  in  the  forum  cannot  be  held  to  apply,  the  question  being 
one  of  obligation,  not  of  remedy. 

This  may  be  illustrated  by  the  case  of  Ruhe  v.  Buck,*  in 
which  the  court  was  divided  on  the  question  whether  a  par- 
ticular law  of  Missouri  (the  forum)  related  to  the  remedy  or  to 
the  obligation  of  the  contract  in  controversy.  In  that  case,  a 
contract  to  pay  money  was  made  in  Dakota,  to  be  performed 
there,  by  a  married  woman  who  was  allowed  by  the  law  of 
Dakota  to  contract  as  a  feme  sole  and  to  sue  and  be  sued  as 
such.  She  owned  land  in  Missouri  which  the  Dakota  creditor 
sought  to  attach.  By  the  law  of  Missouri,  a  married  woman 
was  competent  to  contract  and  be  sued,  but  her  property  could 
not  be  attached.  The  question  therefore  arose  whether  the 
right  to  use  the  particular  remedy  of  attachment  related  to 
the  obligation  of  the  contract  or  to  the  remedy.  If  to  the 
former,  the  law  of  Dakota  must  govern ;  if  to  the  latter,  the  law 
of  Missouri.  The  majority  of  the  court  decided  in  favor  of  the 
law  of  Missouri  (lex  fori),  holding  the  question  to  be  one  of  the 

court  relates  to  the  obligation  of  the  contract  or  to  the  remedy,  such  as  ques- 
tions relating  to  exemptions,  etc.,  cases  of  like  sort  involving  this  constitutional 
provision  will  be  authority  on  the  same  point  as  it  arises  in  private  interna- 
tional law.  See  Edwards  v.  Kearzey,  96  U.  S.  595  ;  Coffman  v.  Bank,  40  Miss. 
29,  90  Am.  Dec.  311. 

3  124  Mo.  178,  25  L.  R.  A.  178,  note.    See  also  §§  183,  note  3,  209, 
810. 


440  OBLIGATION  DEPENDENT   ON   INTENTION.        §  181 

remedy;  but  there  was  strong  dissent.  Applying  the  criterion 
above  mentioned,  it  would  seem  quite  clear  that  the  opinion  of 
the  majority  was  correct.  If,  after  the  execution  of  the  Dakota 
contract,  the  legislature  of  Dakota  had  passed  a  retroactive  law, 
providing  that  no  attachment  should  thereafter  issue  against  a 
married  woman's  property,  but  leaving  untouched  other  reme- 
dies against  her,  it  could  scarcely  be  held  that  this  would  have 
impaired  the  obligation  of  the  contract. 

§  181.  Obligation  of  Contract  dependent  upon  Intention  of 
Parties.  —  It  is  a  point  to  be  specially  noted  that  the  obligation 
of  a  contract  depends  primarily  upon  the  understanding  and  in- 
tention of  the  parties.  In  this  respect  it  differs  materially  from 
the  element  of  validity. 

In  many  instances  we  need  look  no  further  than  to  the  terms 
of  the  contract  itself  to  ascertain  exactly  what  the  promisor 
has  obligated  himself  to  do.  But  questions  often  arise  which 
were  not  foreseen  by  the  parties  and  for  which  no  provision 
has  been  made  in  the  contract ;  as  where  a  bond  or  note  is  given 
which  makes  no  provision  for  the  payment  of  interest  after  ma- 
turity. Or  the  contract  itself  may  be  one  wholly  or  in  part 
implied  by  law,  as  in  case  of  the  implied  contract  to  pay  for 
services  rendered,  or  the  contract  of  an  indorser  of  negotiable 
paper. 

In  all  such  cases  the  parties  having  failed  for  one  reason  or 
another  to  express  their  meaning  fully,  the  law  may  presume 
from  the  circumstances  that  they  intend  to  bind  themselves  to 
certain  duties,  and  undertakes  to  fix  the  scope  and  extent  of 
those  duties  accordingly,  as  to  it  may  seem  just,  wise,  and  poli- 
tic. In  such  cases  the  law  does  not  seek  to  override  the  inten- 
tion of  the  parties,  but  merely  to  supply  what  the  parties  have 
left  unsaid.  On  the  contrary,  the  parties  may  override  the 
law  in  respect  to  such  matters  at  any  time,  and  regulate  their 
own  duties  under  the  contract  by  an  express  agreement  to  that 
effect.  In  other  words,  the  "obligation  "  of  a  contract  (as  here 
used)  is  a  question  of  the  intention  of  the  parties.  If  that  be 
expressed,  it  will  prevail  over  any  rule  of  law ;  if  not  expressed, 
an  appeal  must  be  made  to  the  law  to  ascertain  what  the  pre- 
sumed intention  is.     In  determining  the  obligation  of  a  con 


§  181        OBLIGATION  DEPENDENT   ON   INTENTION.  441 

tract,  the  maxim  "  modus  etconventio  legem  vincunt"  emphati- 
cally  applies.^ 

It  follows  therefore  that  it  is  only  necessary  to  ascertain  the 
law  governing  the  obligation  of  a  contract  in  those  cases  where 
its  terms  are  not  sufiBciently  explicit  in  themselves  to  furnish  a 
guide  to  the  intention  of  the  parties.  If  the  parties  to  a  con- 
tract desire  their  obligations  to  be  such  as  the  law  of  a  particu- 
lar State  would  prescribe  (whether  their  own  or  a  foreign  State), 
they  may  effect  this  result  in  several  ways.  They  may  express 
in  their  contract  all  the  stipulations  which  would  be  implied  by 
the  law  to  which  they  have  reference,  and  such  express  stipula- 
tions would  prevail  over  the  mere  implications  of  any  system 
of  law.     Modus  et  conventio  legem,  vincunt. 

Or  they  may  accomplish  the  same  result  merely  by  declaring 
their  intention  to  obligate  themselves  in  accordance  with  some 
particular  law.  The  provisions  of  that  law  then  become  as  much 
the  express  stipulations  of  the  contract  as  in  the  former  case. 

If  we  go  a  step  further  and  suppose  that  the  parties  have 
made  no  express  stipulation  at  all  in  their  contract  as  to  what 
law  shall  control  the  obligations  incurred  by  them  in  respect  to 

*  To  this  general  principle  there  may  be  a  few  exceptions,  based  on  reasons 
of  public  policy,  or  for  the  protection  of  third  persons  ;  or  where  the  question 
is  one  of  form  rather  than  obligation  ;  or  where  the  question  is  one  of  fact 
rather  than  of  intention.  Thus,  it  might  be  well  doubted  whether  a  party 
may  make  a  contract,  answering  in  every  respect  to  the  definition  of  a  nego- 
tiable note,  yet  with  the  understanding  that  it  should  not  be  so  regarded,  that  is, 
if  third  parties  become  interested.  Or  whether  a  party  may  make  a  contract 
under  seal,  and  yet  agree  that  it  should  be  deemed  an  unsealed  instrument.  See 
"Warren  v.  Lynch,  5  Johns.  (N.  Y.)  239,  244.  Or  whether  one  may  draw  a 
bill  in  one  State,  and  yet  by  agreement  or  intention  make  it  an  inland  bill  of 
another  State.  In  Strawbridge  v.  Robinson,  5  Gilm.  (111.)  470,  50  Am.  Dec. 
420,  it  was  decided  that  this  could  be  done,  but  the  question  there  was  not 
whether  the  bill  was  an  inland  bill,  but  whether  it  should  be  followed  by 
the  same  consequences  as  if  it  were  an  inland  bill,  which  is  a  matter  relating 
to  its  obligation,  and  dependent  upon  the  agreement  or  intent  of  the  parties. 
The  general  rule  is  certainly  that  stated  in  the  text. 

No  reference  is  here  made  to  provisions  in  a  contract  which  affect  the  obli- 
gation but  which  are  declared  void.  Matters  of  validity  have  been  fully  treated 
in  the  preceding  chapter,  and  we  are  now  confining  our  attention  to  contracts 
whose  validity  is  unquestioned. 


442  OBLIGATION   DEPENDENT   ON  INTENTION.        §  181 

matters  about  which  the  contract  itself  is  silent,  but  that  their 
contemporaneous  declarations  and  all  the  surrounding  circum- 
stances show  that  they  actually  had  the  law  of  a  particular 
State  in  mind  when  they  entered  into  the  contract,  it  is  equally 
clear  that  here  also  the  intention  of  the  parties  must  fix  the 
law  which  is  to  determine  the  obligations  incurred  by  them.^ 

But,  as  a  matter  of  fact,  it  rarely  happens  that  the  parties 
have  any  specific  law  in  view  when  they  enter  into  a  contract. 
That  their  contract  is  ambiguous  or  has  left  anything  unsaid 
does  not  usually  occur  to  them.  If  it  did,  they  would  gener- 
ally correct  it  at  once,  and  make  explicit  provision  for  the  point. 
In  such  cases  it  is  the  part  of  private  international  law  by  its 
own  implications  to  fill  the  gap  in  the  expressed  intention  of 
the  parties  touching  the  governing  law,  just  as  a  kindred  duty 
devolves  upon  the  municipal  law  of  a  State  in  case  of  a  domestic 
contract  whose  terms  are  not  sufiiciently  explicit. 

Let  us  suppose  then  a  contract  made  in  one  State,  to  be  per- 
formed in  another,  and  sought  to  be  enforced  in  a  third.  A 
question  arises  touching  some  obligation  or  liability  of  the  prom- 
isor under  the  contract,  which  is  not  covered  by  its  express 
terms.  The  lex  celebrationis  supplies  one  measure  of  this  im- 
plied obligation;  the  lex  solutionis  another;  and  the  lex  fori  a 
third.  Which  is  to  control?  To  answer  merely  "the  law  in  the 
minds  of  the  parties  at  the  time  of  the  contract,"  as  has  been 
said  by  some  of  the  courts,'  does  not  advance  the  inquiry  ma- 
terially, since  we  have  supposed  the  parties  to  have  no  law  actu- 
ally in  contemplation.  We  must  therefore  resort  to  implications 
and  presumptions  founded  upon  the  situs  of  this  element  (the 
obligation). 

Turning  to  the  definition  of  "obligation,"*  it  will  be  noted 
that  it  involves  in  the  main  the  duty  to  perform  the  contract.  It 
is  obvious  therefore  that,  in  the  absence  of  evidence  as  to  the  in- 
tent of  the  parties,  any  doubt  as  to  the  duty  of  the  promisor  in 
respect  to  performance^  so  far  as  it  depends  upon  the  law,  should 

2  See  Jacobs  v.  Credit  Lyonnais,  12  Q.  B.  Div.  589. 

8  See  Jacobs  v.  Credit  Lyonnais,  12  Q.  B.  Div.  589, 596  ;  Briggs  v.  Lathano, 
36  Kan.  255,  59  Am.  Rep.  546,  13  Pac.  393. 
«  Ante,  §  180. 


§  181        OBLIGATION   DEPENDENT   ON   INTENTION.  443 

be  governed  by  the  law  of  the  situs  of  that  performance  (lex  sol. 
utionis).  The  almost  unanimous  current  of  authority  is  to  thi8 
efiEect.*     If  the  contract  is  executed,  not  executory,  or  names  no 

6  Robinson  v.  Queen,  87  Tenn.  445,  3  L.  R.  A.  214,  11  S.  W.  38  ;  Baum 
V.  Birchall,  150  Penn.  St.  164,  24  Atl.  620  ;  Stevens  v.  Gregg,  89  Ky.  461,  12 
S.  W.  775 ;  Hunt  v.  Standart,  15  Ind.  33,  77  Am.  Dec.  79  ;  Rose  v.  Park 
Bank,  20  Ind.  94,  83  Am.  Dec.  306 ;  City  of  Aurora  v.  West,  22  Ind.  88,  85 
Am.  Dec.  413 ;  Odell  v.  Gray,  15  Mo.  337,  55  Am.  Dec.  147;  Peck  v.  Mayo, 
14  Vt.  33,  39  Am.  Dec.  205  ;  Mason  v.  Dousay,  35  111.  424,  85  Am.  Dec.  368  ; 
Abt  V.  American  Bank,  159  111.  467,  42  N.  E.  856  ;  Shoe  &  Leather  Bank  v. 
Wood,  142  Mass.  563,  8  N".  E.  753 ;  Emanuel  v.  White,  34  Miss.  56,  69  Am. 
Dec.  385  ;  HiberniaNat.  Bank  v.  Lacombe,  84  N.  Y.  367;  Green wald  v.  Freese 
(Cal.),  34  Pac.  73  ;  Pierce  v.  Indseth,  106  U.  S.  546  ;  Supervisors  v.  Galbraith, 
99  U.  S.  214  ;  Cox  v.  United  States,  6  Pet.  172,  203;  Brabston  v.  Gibson, 
9  How.  263  ;  Sturdivant  v.  Bank,  9  C.  C.  A.  256,  60  Fed.  730.  In  only  a  few 
instances  have  the  courts  adopted  the  lex  celebrationis  as  against  the  lex  solu- 
tionis in  determining  the  obligation  of  a  contract  admittedly  valid.  These 
have  been  cases  where  the  intent  of  the  parties  has  been  supposed  to  point  to 
the  former  law.  One  of  the  most  prominent  examples  is  the  English  case  of 
Jacobs  V.  Credit  Lyonnais,  12  Q.  B.  Div.  589.  In  that  case  a  contract  was 
made  in  England  between  two  English  firms,  by  which  one  agreed  to  sell  to  the 
other  twenty  thousand  tons  of  "  Algerian  esparto,"  to  be  shipped  by  a  French 
company  at  an  Algerian  port  on  board  vessels  furnished  by  the  purchasers  at 
London,  and  to  be  paid  for  by  them  in  London  upon  arrival.  It  was  also  agreed 
that  the  purchasers  should  accept  and  approve  the  esparto  as  put  on  board  in 
Algiers.  The  outbreak  of  an  insurrection  in  Algiers  prevented  the  delivery  of 
the  entire  amount  of  esparto  contracted  for.  By  the  French  law  (prevailing 
in  Algiers)  the  prevention  of  the  performance  of  a  contract  by  vis  major  dis- 
charged the  promisor.  It  was  otherwise  by  English  law.  The  English  court, 
assuming  Algiers  to  be  the  locus  solutionis  of  the  contract  (which  is  very  doubt- 
ful), nevertheless  held  that  the  English  law  (lex  celebrationis)  should  control, 
on  the  ground  that  that  was  the  law  intended  by  the  parties  to  govern  the  con- 
tract. See  also  Gibson  v.  Ins.  Co.,  77  Fed.  561;  Knights  Templar  Association 
V.  Greene,  79  Fed.  461;  Penn  Mut.  Ins.  Co.  v.  Trust  Co.,  19  C.  C.  A.  286,  72 
Fed.  413.  Perhaps,  however,  the  lex  celebrationis,  not  the  lex  solutionis,  will 
be  the  "proper  law  "  in  those  cases  where  the  obligation  of  the  coiiirad  depends 
upon  some  matter  of  form,  (not  amounting  to  a  question  of  validity),  as  in  case 
of  an  oral  contract  enforceable  where  made,  but  upon  which,  under  the  statute 
of  Frauds  of  the/oT-um,  "  no  action  may  be  brought,"  because  the  contract  ia 
not  in  writing ;  or  the  case  of  contracts,  enforceable  where  made,  upon  mto- 
stj,mped  paper,  to  which  the  lex  fori  on  that  account  refuses  a  remedy,  or  which 
that  law  refuses  to  receive  in  evidence  in  a  auit  thereon.  Ante,  §§  172,  178? 
post,  §  210. 


444  OBLIGATION   DEPENDENT  ON  INTENTION.        §  181 

place  of  performance  if  executory,  the  locus  solutionis  and  locus 
celebrationis  are  identical.  In  such  cases  the  law  of  the  place 
where  the  executory  contract  is  made  will  govern,  not  because  it 
is  the  lex  celebrationis,  but  because  it  is  also  the  lex  solutionis. 
If  the  contract  is  executed,  it  is  performed  when  and  where 
made,® 

Thus,  the  question  whether  a  sale  of  a  machine  implies  a 
warranty  of  fitness  for  the  purpose  for  which  it  was  sold  is  a 
matter  relating  to  the  obligation  of  the  contract  of  sale  and 
is  to  be  determined  by  the  law  of  the  place  of  sale  (lex  loci 
contractus).' 

In  Tenant  v.  Tenant,^  the  question  was  whether  a  surety 
might  discharge  himself  by  notice  to  the  creditor  to  sue.  A 
note,  upon  which  the  defendants  were  sureties,  was  delivered  to 
the  payee  in  West  Virginia,  no  place  of  payment  being  men- 
tioned. Notice  had  been  orally  given  the  payee  by  the  sureties 
to  proceed  at  once  to  sue  the  maker  or  they  would  no  longer  be 
responsible.  By  the  law  of  Pennsylvania,  where  this  suit  was 
brought,  and  where  one  of  the  sureties  resided,  this  notice  served 
to  discharge  the  sureties.  By  the  law  of  West  Virginia,  such 
notice  was  required  to  be  in  writing.  It  was  held  that  the  law 
of  West  Virginia  should  prevail. 

In  Cox  V.  United  States,"  a  bond  was  given  by  a  navy  agent 
at  New  Orleans  and  his  sureties  to  the  United  States,  condi- 
tioned for  the  faithful  performance  of  his  duties  and  a  true 
accounting  of  all  moneys,  etc.     After  the  agent's  insolvency 

«  See  Meyer  v.  Richards,  163  IT.  S.  385  ;  Kennebrew  v.  Machine  Co.,  106 
Ala.  377,  17  So.  545;  Gross  v.  Jordan,  83  Me.  380,  22  Atl.  250  ;  "Wilson  v. 
Lazier,  11  Gratt.  (Va.)  477;  Nichols  v.  Porter,  2  W.  Va.  13,  94  Am.  Dec.  501; 
Barrett  ».  Dodge,  16  R.  I.  740,  19  Atl.  530;  Griswold  v.  Golding  (Ky.), 
3  S.  W.  535;  Heebner  ».  lus.  Co.,  10  Gray  (Mass.),  131;  Tenant  v.  Tea- 
ant,  110  Penn.  St.  478, 1  Atl.  532;  Lewis  v.  Headley,  36  111.  433,  87  Am.  Dec. 
227;  Aymar  v.  Sheldon,  12  Wend.  (N.  Y.)  439,  27  Am.  Dec.  137. 

'  Kennebrew  i'.  Machine  Co.,  106  Ala.  377,  17  So.  545.  See  Meyer  v, 
Richards,  163  U.  S.  385 ;  Story,  Confl.  L.  §  264. 

8  110  Penn.  St.  478,  1  Atl.  532.  This  is  in  reality  an  instance  of  the  dis- 
charge of  a  contract  by  operation  of  law,  which  is  a  part  of  the  obligation  ol 
the  contract.     See  post,  §  190. 

•  6  Pet.  172. 


§  181        OBLIGATION  DEPENDENT  ON  INTENTION.  445 

aud  decease,  the  sureties  were  sued  by  the  government.  The^ 
claimed  that  the  government  was  bound  (in  accordance  with  the 
law  of  Louisiana)  to  divide  its  action  and  to  take  judgment 
against  each  surety  for  his  share  of  the  sum  due,  since  the  con- 
tract was  made  in  Louisiana.  But  the  court  held  that  the  seat 
of  government,  Washington,  was  the  true  place  of  performance 
of  the  contract,  and  that  the  liability  of  the  sureties  must  be 
governed  by  the  rules  of  the  common  law  prevailing  in  the  Dis- 
trict of  Columbia,  and  that  each  was  bouud  to  the  United  States 
for  the  whole. 

In  Abt  V,  American  Bank,"  a  draft  was  drawn  in  Illinois  on 
a  New  York  bank  and  was  payable  in  New  York.  The  question 
was  whether  the  drafb  should  operate  as  an  assignment  pro  tanto 
of  the  drawer's  funds  in  the  bank  as  against  assignees  of  the 
drawer  under  a  subsequent  deed  of  assignment.  By  the  law  of 
Illinois  a  draft  or  check  did  not  operate  as  an  assignment.  By 
the  law  of  New  York  it  did.  It  was  held  that  the  law  of  New 
York  (lex  solutionis)  should  control. 

In  First  Nat.  Bank  v.  Hall,^^  the  defendants,  Hall  and  others, 
agreed  in  Pennsylvania  to  furnish  C  with  certain  money  as  he 
should  need  it  in  his  business.  They  were  to  receive  a  share  of 
the  profits  during  the  time  C  retained  the  money,  but  he  was 
to  be  allowed  to  repay  it  at  the  end  of  five  years  and  relieve  his 
business.  The  control  was  left  with  C,  and  it  was  expressly 
stipulated  that  the  contract  should  not  be  construed  to  create  a 
partnership  except  as  to  the  profits.  The  business  was  conducted 
in  New  York,  and  the  contract  was  to  be  performed  there.  It 
was  held  that  the  New  York  law  should  determine  whether  this 
constituted  the  defendants  partners,  so  far  as  creditors  were 
concerned." 

w  159  111.  467,  42  N.  E.  856.  See  also  National  Bank  of  America  v.  Indiana 
Banking  Co.,  114  111.  483,  2  N.  E.  401. 

"  150  Penn.  St.  466,  24  Atl.  665. 

12  It  may  be  well  doubted  whether  this  case  in  reality  presents  a  matter 
relating  to  the  "obligation"  of  the  contract ;  but  rather  a  question  of  the 
validity  of  the  provision  that  the  parties  should  not  be  construed  to  be  part- 
ners. The  result  however  would  be  the  same  in  either  case ;  the  law  of  New 
York,  where  the  contract  was  to  be  performed,  would  control.     If  a  matter  of 


446  OBLIGATION   OF  MAKER   OR   ACCEPTOR.  §  182 

In  Baldwin  v.  Gray,"  the  defendant,  Gray,  and  others  owned 
a  boat  as  partners,  the  partnership  having  been  entered  into  in 
Pennsylvania.  Suit  was  brought  in  Louisiana  to  recover  for  the 
expenses  of  the  boat  while  it  was  in  Louisiana.  In  this  suit,  it 
was  sought  to  hold  Gray,  one  of  the  partners,  responsible  in 
solido  for  the  whole  indebtedness  of  the  firm  on  this  account. 
This  was  the  measure  of  his  liability  in  Pennsylvania,  where 
the  contract  of  partnership  was  made ;  but  by  the  law  of  Loui- 
siana, where  the  indebtedness  occurred,  each  partner  was  liable 
only  for  his  share.  It  was  held  that  the  law  of  Louisiana  (the 
lex  celebrationis  et  solutionis  of  the  indebtedness)  should  con- 
trol. Speaking  of  the  effect  of  the  Pennsylvania,  law,  the  court 
said  :  "  This  law  governs  the  obligations  of  the  partners  with 
each  other,  but  not  with  third  persons.  It  can  no  more  affect 
the  rights  of  those  who  contract  with  them  in  a  different  country 
than  particular  stipulations  between  the  partners  could.  The 
contract  entered  into  in  the  case  before  us  was  made  in  this  State 
and  must  be  regulated  by  the  lex  loci  contractus." 

These  illustrations  will  suffice  to  show  the  application  of  the 
general  principles  by  which  is  determined  the  ''proper  law" 
governing  the  obligation  of  a  contract.  In  the  succeeding  sec- 
tions we  will  examine  more  particularly  some  of  the  more  im- 
portant classes  of  contracts.  Though  the  same  general  principle 
runs  through  them  all,  namely,  that  in  the  absence  of  evidence 
of  a  different  intent  the  lex  solutionis  of  the  contract  determines 
its  obligation  and  the  auties  and  liabilities  of  the  promisor,  it 
is  not  always  easy  to  apply  the  principle  to  particular  cases. 
The  various  contracts  to  be  discussed  are  (1)  Negotiable  instru- 
ments ;  (2)  Contracts  calling  for  interest ;  (3)  Covenants  con- 
tained in  conveyances  of  land. 

§  182.  Negotiable  Instruments  —  Maker's  or  Acceptor's 
Contract.  —  The  questions  that  arise  touching  the  obligations 
of  the  maker  of  a  note  or  the  acceptor  of  a  bill  are  generally  of 
a  different  order  from  those  presented  with  respect  to  the  obli- 

validity,  it  is  a  validity  afiPecting  the  performance  of  the  contract,  namely,  the 
establishment  of  a  partnership  in  New  York, 

"  4  Mart  N.  s.  (La.)  192,  16  Am.  Dec.  169.  But  see  King  v.  Sarria,  69  N.  Y. 
24,  25  Am.  Rep.  12L  ;  ante,  §  158. 


§  182  OBLIGATION  OF  MAKER  OR  ACCEPTOR.  447 

gations  of  the  indorser  or  drawer,  and  they  will  be  treated  sep- 
arately for  this  reason,  not  because  there  is  any  great  difference 
in  the  general  principles  applicable.  In  either  case  the  leading 
rule  for  the  determination  of  the  proper  law  still  holds  good. 
The  lex  solutionis  of  the  particular  contract  in  general  con- 
trols its  obligation.  We  have  already  considered  at  some  length 
the  rules  by  which  the  locus  solutionis  of  the  maker's  or  in- 
dorser's  contract  is  fixed,  and  the  reader  is  here  advised  to  turn 
back  to  that  discussion.^ 

The  question  whether,  as  to  the  maker,  a  note  is  negotiable, 
and  hence  whether  or  not  the  maker  may  plead  against  a  bona 
fide  holder  equities  existing  between  himself  and  the  payee 
arising  before  notice  of  the  transfer,  is  to  be  decided  in  accord- 
ance with  the  law  of  the  place  where  the  note  is  payable,  though 
it  is  indorsed  or  the  suit  is  brought  iu  another  State.' 

And  if  the  maker  or  acceptor  of  a  note  or  bill  should  urge 
bis  right  to  plead  defenses  against  the  holder  on  the  ground 
that  the  holder  is  not  a  purchaser  for  value,  the  lex  solutionis 
of  the  note  or  bill,  not  the  law  of  the  place  where  the  holder 
acquired  his  title,  will  govern  the  question.'  Thus,  in  Wood- 
ruff V.  Hill,*  a  negotiable  note  was  made  and  payable  in  Mas- 
sachusetts, but  was  indorsed  in  another  State,  the  indorsee 
receiving  the  note  from  the  payee  in  satisfaction  of  a  pre-exist- 
ing debt.  By  the  law  of  the  State  where  the  indorsement  was 
made  a  note  indorsed  for  a  pre-existing  debt  did  not  constitute 
the  holder  a  purchaser  for  value.  By  the  law  of  Massachusetts 
(lex  solutionis)  it  did.  In  a  suit  by  the  indorsee  against  the 
maker,  it  was  held  that  the  Massachusetts  law  must  determine 

1  Ante,  §§  164,  165. 

2  Wilson  V.  Lazier,  11  Gratt.  (Va.)  477;  Hull  v.  Blake,  13  Mass.  153; 
Stevens  v.  Gregg,  89  Ky.  461,  12  S.  W.  775  ;  Barrett  v.  Dodge,  16  R.  1.  740, 
19  Atl.  530;  Harrison  v.  Edwards,  12  Vt.  648,  36  Am.  Dec.  364;  City  ol 
Aurora  v.  West,  22  Ind.  88,  85  Am.  Dec.  413  ;  Rose  v.  Park  Bank,  20  Ind. 
94,  83  Am.  Dec.  306;  Odell  v.  Gray,  15  Mo.  337,  55  Am.  Dec.  147;  Emanuel 
V.  White,  34  Miss.  56,  69  Am.  Dec.  385  ;  Brabston  v.  Gibson,  9  How.  263  ; 
Supervisors  v.  Galbraith,  99  U.  S.  214. 

8  Woodruff  V.  Hill,  116  Mass.  310  :  Woodsen  v.  Owens  (Miss.),  12  So.  207; 
Webster  v.  Howe  Machine  Co.,  54  Conn.  394,  8  Atl.  482. 
<  116  Mass.  310. 


448  OBLIGATION   OF   MAKER   OR   ACCEPTOR.  §  182 

whether  the  holder  was  a  holder  for  value  ;  that  is,  whether  the 
maker  was  bound  under  his  contract  to  pay  him  the  money  at 
all  events. 

In  Phipps  V.  Harding,^  the  plaintiffs  in  error  indorsed  a  note 
in  Wisconsin  for  the  accommodation  of  the  maker,  the  note 
being  delivered  and  payable  in  Massachusetts.  By  the  general 
commercial  law,  as  laid  down  by  the  United  States  Supreme 
Court  (and  binding  upon  the  federal  courts),  accommodation 
indorsers  were  to  be  regarded,  not  as  indorsers,  but  as  joint 
makers  of  the  note,  and  as  such  not  in  general  entitled  to  notice 
of  dishonor.  But  the  law  of  Massachusetts  (lex  solutionis)  pro- 
vided that  **ali  persons  becoming  parties  to  notes  payable  on 
time,  by  signature  on  the  oack  thereof,  shall  be  entitled  to 
notice  of  non-payment  thereof  the  same  as  indorsers."  Upon 
suit  brought  in  tne  federal  court  of  Wisconsin  against  the  ac- 
commodation indorsers,  it  was  held  that  the  Massachusetts  law 
should  control,  and,  though  joint  makers  of  the  note,  they  were 
entitled  to  notice  of  dishonor. 

The  maker's  rignt  to  days  of  grace,  and  the  nature  and  ex- 
tent of  that  right,  will  also  be  governed  by  the  lex  solutionis  of 
the  mater's  contract.' 

If  a  note  or  bill,  drawn  and  payable  in  one  State,  is  indorsed 
in  another  to  an  indorsee,  the  indorsement  not  operating  to 
transfer  the  title  to  the  indorsee  by  the  law  of  the  place  of 
transfer,  but  transferring  it  fully  under  the  lex  solutionis  of  the 
contract  of  the  defendant  (the  maker,  acceptor,  drawer,  or  prior 
indorser),  it  is  a  mooted  question  whether  the  right  of  the  in- 
dorsee to  sue  the  defendant  is  a  part  of  the  obligation  of  the 
defendant's  contract,  or  is  to  be  governed  by  the  proper  law  of 
the  indorsement  under  which  the  holder  claims  title,  that  is,  by 
the  law  of  the  place  where  that  indorsement  is  made.     On  the 

6  17  C.  C.  A.  203,  70  Fed.  468.  See  Lawrence  v.  Bassett,  5  Allen  (Mass. ), 
HO. 

«  Pierce  v.  Indseth,  106  U.  S.  546,  550  ;  Scudder  v.  Bank,  91  U.  S.  406, 
412 ;  Brown  v.  Jones,  125  Ind.  375,  25  N.  E.  452  ;  Stebbins  v.  Leowolf, 
3  Cosh.  (Mass.)  137;  Bryant  v.  Edson,  8  Vt.  325,  30  Am.  Dec.  472;  Aymar 
V.  Sheldon,  12  Wend.  (N.  Y.)  439,  444,  27  Am.  Dec.  137  ;  Bowen  ».  Newell, 
13  N.  y.  290,  64  Am.  DiXJ.  550. 


§  182  OBLIGATION  OF  MAKER  OR   ACCEPTOR.  449 

one  hand,  it  is  urged  that  the  general  rule  is  that  the  validity 
and  effect  of  an  executed  contract  of  transfer  or  indorsement  is 
governed  by  the  law  of  the  place  where  such  transfer  is  made. 
On  the  other  hand,  it  is  argued  that  the  maker,  acceptor,  drawer, 
or  prior  indorser  (the  defendant)  has  undertaken  to  pay  to  the 
payee,  or  such  persons  as  he  may  name  in  accordance  with  the 
law  with  reference  to  which  he,  the  defendant,  contracts  (the 
lex  solutionis  of  the  defendant's  contract),  and  that  the  mere 
accident  that  the  indorsement  to  the  holder  is  made  abroad  under 
a  different  law  should  not  affect  the  defendant's  obligation  to 
pay  according  to  his  agreement. 

In  Bradlaugh  v.  De  E.in,''  a  bill  was  drawn  in  Brussels  on  the 
defendant  in  London,  and  there  accepted  by  him.  It  was  after- 
wards indorsed  by  A  in  Brussels  to  C,  and  by  C  in  Paris  to  D, 
and  by  D  to  E,  who  in  Paris  indorsed  it  in  blank  to  the  plain- 
tiff, a  resident  of  London.  The  law  of  France,  where  the  bill 
was  indorsed  to  the  plaintiff,  required  that  the  indorsement  of  a 
bill  or  note  should  be  dated  and  should  express  the  value  re- 
ceived and  the  name  of  the  indorsee  ;  and  that  if  the  indorse- 
ment failed  to  comply  with  these  requirements,  it  should  not 
operate  as  a  transfer  of  the  bill,  but  only  as  an  authority  to  col- 
lect. By  the  law  of  England  (the  lex  solutionis  of  the  acceptor's 
contract)  a  blank  indorsement  operated  to  transfer  title  to  the 
bill.     The  court  held  that  the  law  of  France  should  govern.' 

On  the  other  hand,  in  Lebel  v.  Tucker,^  a  bill  of  exchange, 

7  L.  R.  5  C.  P.  473  (Exchequer  Chamber). 

*  The  same  result  was  reached  in  Trimbey  v.  Vignier,  1  Bing.  N.  c.  151, 
27  E.  C.  L.  336,  the  circumstances  of  which  were  Identical,  except  that  the 
instrument  sued  on  was  a  note,  the  maker  of  which  was  the  defendant.  See 
also  Hibernia  Nat.  Bank  v.  Lacombe,  84  N.  Y.  367,  376. 

9  L.  R.  3  Q.  B.  77.  See  also  Everett  v.  Vendryes,  19  N.  Y.  436,  where  it 
was  the  drawee  of  the  bill  who  was  sued.  There  the  bill  was  drawn  in 
New  Granada  and  there  indorsed  in  blank,  but  was  payable  in  New  York, 
where  the  drawee  resided.  The  drawee  refused  to  accept,  and  the  indorsee 
sued  the  drawer  in  New  York.  The  law  of  New  Granada  touchiug  indorse- 
ments was  similar  to  the  French  law  mentioned  in  Bradlaugh  v.  De  Rin,  supra. 
It  was  held  that  New  York  was  the  locus  solutionis  of  the  drawee's  contract, 
and  that  the  law  of  New  York  should  govern  the  right  of  the  holder  to  sue  the 
drawee. 

29 


450  OBLIGATION   OF   INDORSEE   OB   DRAWER.        §  183 

drawn,  accepted,  and  payable  in  England,  was  indorsed  in  France. 
The  circumstances  were  practically  the  same  as  in  Bradlaugh 
V.  De  Rin,  supra.  But  the  court,  taking  the  view  that  it  was 
a  matter  relating  to  the  obligation  of  the  acceptor's  contract, 
held  that  it  was  governed  by  the  English,  not  the  French,  law. 

Much  may  be  said  in  favor  of  either  view.  It  is  believed, 
however,  that  the  sounder  doctrine  is  that  enunciated  in  Brad- 
laugh  V.  De  Rin,  supra.'^^ 

§  183.  Same  —  Obligation  of  Drawer's  or  Indorser's  Con- 
tract. —  We  have  seen  in  a  preceding  section,  ^  that  much 
doubt  has  been  expressed  whether  the  locus  solutionis  of  the 
executory  contract  of  the  drawer  of  a  bill  or  the  indorser  of  a  bill 
or  note  is  the  place  where  the  bill  or  note  is  payable,  or  whether 
it  is  identical  with  the  locus  celebrationis  of  the  drawer's  or  in- 
dorser's contract.  It  was  there  stated  that  the  better  view  was  that 
the  locus  solutionis  of  the  drawer's  or  indorser's  contract  is  the 
place  where  the  bill  or  note  is  payable.  The  important  fact  to  be 
here  noted  is  that  the  difference  of  opinion  exists.  Hence  it  is 
no  rebuttal  of  the  general  rule  that  the  lex  solutionis  governs  the 
obligation  of  his  contract  to  find  some  of  the  courts  holding 
that  the  obligations  of  the  drawer  or  indorser  are  governed  by 
the  law  of  the  place  where  the  instrument  is  drawn  or  indorsed, 
while  others  hold  them  to  be  governed  by  the  law  of  the  place 
where  the  instrument  is  payable.  The  principle  of  both  lines 
of  decision  is  the  same:  the  lex  solutionis  of  the  drawer's  or  ac- 
ceptor's contract  is  to  govern.  The  conflict  arises  in  respect  to 
what  is  the  locus  solutionis.  This  question  has  been  already 
discussed  in  the  section  above  alluded  to.  We  shall  here  there- 
fore, for  the  most  part,  treat  the  locus  solutionis  of  the  drawer's 
or  indorser's  contract  indifferently  as  either  identical  with  the 
locus  celebrationis  of  that  contract  or  identical  with  the  locus 

10  For  example,  if  the  facts  of  Lebel  v.  Tucker  had  been  reversed,  and  the 
bill  had  been  accepted  in  France  and  payable  there,  the  indorsee  claiming 
under  an  indorsement  made  in  England,  the  doctrine  of  Lebel  v.  Tucker  would 
have  necessitated  the  indorsee's  ascertaining  the  law  of  France  before  he  took 
the  bUl.  This  would  seriously  interfere  with  the  negotiability  of  foreign  bille 
and  notes. 

1  Ante,  §  16S. 


§  183        OBLIGATION  OP  INDORSEE   OB   DRAWER.  451 

solutionis  of  the  bill  or  note,  according  as  the  particular  de- 
cisions mentioned  take  one  or  the  other  view.  The  purpose 
here  is  merely  to  show  that  the  lex  solutionis  governs. 

In  Baxter  Nat.  Bank  v.  Talbot,*  suit  was  brought  in  Massa- 
chusetts against  the  indorser  of  a  note  indorsed  in  blank  in 
Vermont  to  the  plaintiff.  At  the  time  of  the  indorsement,  there 
had  been  an  oral  agreement  between  the  indorser  and  indorsee 
(the  plaintiff)  that  the  former  should  not  be  liable,  save  to  the 
extent  of  a  certain  fund  under  his  control.  By  the  law  of  Massa- 
chusetts (lex  fori),  evidence  could  not  be  introduced  of  this  oral 
agreement  to  vary  the  liability  imposed  by  the  indorsement. 
By  the  law  of  Vermont,  a  contract  of  indorsement  was  not  an 
absolute  one,  but  was  dependent  upon  the  understanding  of  the 
parties,  which  might  be  proved.  It  was  urged  that  the  question 
was  one  of  evidence  to  be  controlled  by  the  lex  fori,  but  the  court 
held  it  to  be  part  of  the  obligation  of  the  indorser's  contract,  to 
be  controlled  by  the  law  of  Vermont.' 

With  respect  to  the  "proper  law"  governing  presentment, 
notice  of  dishonor,  protest,  and  other  acts  of  like  kind,  ordi- 

2  154  Mass.  213,  28  N.  E.  163. 

'  In  Downer  v.  Chesebrough,  36  Conn.  39,  4  Am.  Rep.  29,  a  very  similar 
case,  the  court  decided  in  favor  of  the  lex  fori,  and  yet  it  is  believed  both 
decisions  are  correct.  In  Downer  v.  Chesebrough,  supra,  an  action  was 
brought  in  Connecticut  against  the  indorser  of  a  note,  made  and  indorsed  in 
New  York  and  payable  there,  it  having  been  orally  agreed  between  the  in- 
dorser and  indorsee  that  the  indorsement  was  only  for  collection.  By  the 
New  York  law  parol  evidence  of  this  agreement  was  not  admissible  ;  by  the 
law  of  Connecticut,  it  was.  The  court  held  that  the  Connecticut  law  (lex 
fori)  should  control,  on  the  ground  that  it  was  a  matter  of  evidence  pertaining 
to  the  remedy. 

If  we  apply  to  these  two  cases  the  criterion  mentioned  ante,  §  180,  as  the 
test  by  which  to  ascertain  whether  a  particular  matter  relates  to  the  obliga- 
tion of  the  contract  or  to  the  remedy,  it  will  be  found  that  these  cases,  con- 
flicting as  they  appear,  are  both  correctly  decided.  This  test  is  the  inquiry 
whether  the  lex  solutionis  might  retroactively  be  altered  to  the  form  of  the 
lex  fori  without  impairing  the  obligation  of  the  contract  under  the  federal 
constitution.  If  it  could  not  be  so  altered  constitutionally,  the  matter  relates 
to  the  obligation  of  the  contract.  Such  would  seem  clearly  to  be  the  case, 
under  the  circumstances  supposed,  in  Bank  v.  Talbot,  supra.  If  the  lex  solu- 
tionis could  constitutionally  be  so  altered,  the  matter  relates  to  the  remedy 
Such  would  seem  to  be  equally  clearly  the  case  in  Downer  v.  Chesebrough. 


452  OBLIGATION   OF   INDORSEE   OR  DRAWEE.        §  183 

narily  done  at  the  time  and  place  when  and  where  payment  is 
expected  to  be  made,  the  courts  for  the  most  part  agree  that  the 
law  of  the  place  where  the  bill  or  note  is  payable  shall  govern. 

In  Rothschild  v.  Currie,*  a  bill  was  drawn  in  England  on  a 
French  house,  and  was  accepted  and  made  payable  there.  The 
payee  (the  defendant)  indorsed  the  bill  in  England  to  the  plain- 
tiff. The  bill  was  dishonored  at  maturity,  of  which  the  defend- 
ant was  notified  according  to  the  law  of  France,  but  not  in 
accordance  with  the  law  of  England.  The  court  held  the  notice 
sufficient  to  charge  the  indorser.® 

So,  in  Hirschfield  v.  Smith,'  a  bill  was  drawn  in  England 
payable  to  the  drawer's  order,  directed  to  and  accepted  by  the 
drawee  in  France,  payable  in  France  and  indorsed  by  the  drawer 
to  the  defendant  in  England,  who  indorsed  it  to  the  plaintiff  in 
England.  The  bill  was  presented  and  dishonored,  notice  of 
which  was  given  the  defendant  in  accordance  with  the  laws  of 
France,  though  not  within  the  time  required  by  English  law. 
It  was  held  that  the  French  rule  should  govern. 

In  Brown  v.  Jones,''  a  bill  was  drawn  in  Indiana  upon  a  party 
in  Illinois  and  made  payable  there.  The  drawer  indorsed  the 
bill  to  the  plaintiff.  It  was  dishonored,  and  notice  thereof  was 
sent  to  the  drawer  and  indorser  within  the  time  permitted  by 
Illinois  law,  but  not  by  the  law  of  Indiana.  It  was  held  that 
the  law  of  Illinois  should  control. 

In  all  of  these  cases  a  liability  was  sought  to  be  enforced  by 
the  ultimate  holder  of  the  bill  or  note  against  the  drawer  or  in- 
dorser, not  by  an  intermediate  indorser  against  a  prior  indorser. 
The  same  principle,  however,  should  control  in  the  latter  case, 
and  the  lex  solutionis  of  the  bill  or  note  (not  of  the  prior  in- 
dorser's  contract)  should  govern. 

Thus,  in  Home  v.  Rouquette,'  a  bill  of  exchange  was  drawn 

*  1  Q.  B.  43,  1  Ad.  &  El.  n.  s.  43. 

6  See  also  Rouquette  v.  Overmann,  L.  R.  10  Q.  B.  525  ;  Wooley  v.  Lyon, 
117  111.  244,  57  Am.  Rep.  867 ;  Gay  v.  Rainey,  89  111.  221,  31  Am.  Rep.  76 ; 
Briggs  V.  Latham,  36  Kan.  255,  59  Am.  Rep.  546,  13  Pac.  393  ;  Carnegie  Steel 
Co.  V.  Construction  Co.  (Tenn.),  38  S.  W.  102 ;  Stubbs  v.  Colt,  30  Fed.  417. 

«  L.  R.  1  C.  P.  340. 

»  125  Ind.  375,  25  N.  E.  452.     See  also  Pierce  i;.  Indseth,  106  U.  S.  546. 

»  8  Q.  B.  Div.  514,  28  Eng.  Rep.  424. 


§  183        OBLIGATION  OF  INDORSBR  OR   DRAWER.  463 

in  England  upon  a  Spanish  house,  payable  in  Spain.  It  was 
indorsed  in  England  by  the  defendant  to  the  plaintiff,  who 
indorsed  it  in  Spain  to  M,  a  resident  of  Spain.  Acceptance 
having  been  refused  in  Spain,  a  delay  of  twelve  days  occurred 
before  M  wrote  to  notify  the  plaintiff  of  the  dishonor.  On  the 
receipt  of  this  notice  the  plaintiff  at  once  notified  the  defendant. 
By  the  law  of  Spain,  no  notice  of  dishonor  by  non-acceptance 
was  required.  Immediate  notice  was  demanded  by  the  law  of 
England.  The  defendant  pleaded  want  of  due  notice,  but  the 
court  held  the  plaintiff  entitled  to  recover." 

In  Musson  v.  Lake,^**  a  bill  was  drawn  in  Mississippi  upon  a 
firm  in  Louisiana.  It  was  indorsed  by  Lake  in  Mississippi, 
and  was  protested  by  a  notary  in  Louisiana  for  non-payment. 
The  protest  did  not  show  that  the  bill  itself  had  been  exhibited 
when  the  demand  was  made  upon  the  drawee,  as  the  law  of 
Mississippi  (but  not  that  of  Louisiana)  required.  The  court 
took  the  view  that  Mississippi  was  the  locus  solutionis  of  the 
indorser's  contract,  and  held  that  that  law  should  govern  the 
effect  of  the  presentment.  It  is  believed  that  the  better  view 
would  be  that  the  law  of  Louisiana,  as  the  lex  solutionis  of  the 
bill,  should  control  such  questions  as  this;  for  with  reference 
to  matters  connected  with  the  payment  of  the  bill  or  note  at 

*  In  this  case,  however,  the  court  did  not  rest  its  decision  clearly  upon  the 
ground  that  the  lex  solutionis  of  the  bill  should  govern  the  obligation  of  the 
defendant  indorser's  contract,  though  it  is  believed  the  ruling  amounts  to 
this.  It  was  placed  upon  the  ground  that  the  liability  of  the  plaintiff  upon 
his  Spanish  indorsement  to  M,  was  to  be  measured  by  the  law  of  Spain  ;  that 
he  was  responsible  to  M  notwithstanding  the  delay  in  the  notice  of  non-accept- 
ance ;  and  that  since  the  plaintifiF  had  paid  value  to  the  defendant  for  the 
bill,  and  had  himself  been  legally  made  liable  upon  it,  he  was  entitled  to  look 
to  the  defendant  for  indemnity.  If  M,  instead  of  looking  to  the  plaintiff,  had 
proceeded  at  once  against  the  defendant  in  this  case,  the  decision  leaves  it 
entirely  unsettled  what  law  would  have  been  applicable.  It  would  seem  the 
better  and  safer  rule  that  the  lex  solutionis  of  the  bill  or  note  should  control 
in  all  such  cases,  thus  making  the  same  law  the  measure  of  the  liability  of  all 
the  indorsers,  no  matter  where  they  indorsed. 

10  4  How.  262.  See  also  Slocum  v.  Pomery,  6  Cr.  221  ;  Powers  v.  Lynch, 
3  Mass.  77;  Aymar  v.  Sheldon,  12  Wend.  (N.Y.)  439,  27  Am.  Dec.  137; 
Hunt  V.  Standart,  15  Ind.  33,  77  Am.  Dec.  79;  Douglas  v.  Bank,  97  Tenn 
13.%  36  S.  W.  874. 


464  OBLIGATION   TO  PAY  INTEREST.  §  184 

maturity,  protest,  dishonor,  etc.,  all  the  parties  should  be  pre- 
sumed to  have  in  mind  the  law  of  the  place  of  payment,  regard- 
less of  the  situs  of  their  individual  collateral  contracts.  ^^ 

Nor  is  there  any  reason  to  presume  that  the  parties  have  in 
mind  any  other  law  as  determining  questions  of  their  general 
liability,  at  least  if  we  suppose  that  the  place  of  performance  of 
the  indorser's  contract  is  the  place  where  the  bill  or  note  is 
payable.  In  inquiries  relating  to  such  questions,  as  whether 
or  not  the  indorser  is  liable  primarily  and  immediately,  or  only 
after  due  diligence  has  been  used  to  induce  the  maker  or 
acceptor  to  pay,  the  subject  of  the  inquiry  is  the  obligation  of 
the  indorser's  contract,  which  is  to  be  controlled  by  the  lex 
solutionis  thereof.  ^'^ 

§  184.  Obligation  to  Pay  Interest.  —  If  a  contract  to  pay 
money  makes  no  mention  of  interest,  or  though  calling  for 
"interest"  names  no  rate  at  which  it  shall  be  paid,  it  is  well 
settled  that  the  obligation  to  pay  interest  on  the  amount 
is  governed  by  the  lex  solutionis  of  the  contract,  unless  the 

"  Scudder  v.  Bank,  91  U.  S.  406,  412. 

**  Whether  the  locus  solutionis  of  the  indorser's  contract  is  the  place  where 
the  bill  or  note  is  payable,  or  the  place  where  the  indorsement  is  made,  is  a 
mooted  question,  though  the  former  view  is  preferable.  See  ante,  §  165.  It 
so  happens  that  the  cases  which  have  so  far  dealt  with  the  particular  inquiry 
mentioned  in  the  text  have  taken  the  latter  view,  and  have  therefore  held 
that  the  law  of  the  place  of  indorsement  controls  the  steps  to  be  taken  against 
the  maker  or  acceptor  before  forcing  the  indorser  to  pay.  Hunt  v.  Standart, 
15  Ind.  33,  77  Am.  Dec.  79;  Rose  v.  Park  Bank,  20  Ind.  94,  83  Am.  Dec. 
306  ;  Nichols  v.  Porter,  2  W.  Va.  13,  94  Am.  Dec.  501  ;  Williams  v.  Wade, 
1  Met.  (Mass.)  82.  See  Young  v.  Harris,  14  B.  Mon.  (Ky.)  556,  61  Am. 
Dec.  170;  Carlisle  v.  Chambers,  4  Bush  (Ky,),  272,  96  Am.  Dec.  304.  In 
Rose  V.  Park  Bank,  supra,  a  note  made  in  Indiana  was  payable  in  New 
York,  and  was  indorsed  in  both  States.  By  the  law  of  Indiana,  an  indorser 
could  not  be  sued  until  after  suit  was  brought  against  the  maker.  The 
Indiana  court,  adopting  the  theory  that  the  loci  solutionis  of  the  indorsers' 
contracts  were  the  places  where  they  were  made,  held  that  as  to  the  New  York 
indorsers  the  law  of  New  York  should  govern,  while  as  to  the  Indiana  in- 
dorsers the  law  of  that  State  should  prevail.  This  view,  it  will  be  observed, 
throws  upon  the  holder  the  burden  not  only  of  ascertaining  the  law  of  each 
particular  place  of  indorsement,  but  of  ascertaining  also  the  place  of  such  in- 
dorsement  at  his  peril.  This  doctrine  certainly  tends  to  hamper  the  negoti*- 
bility  of  paper. 


§  184  OBLIGATION  TO   PAY   INTEREST,  455 

parties  clearly  contracted  with  reference  to  the  law  of  another 
State. ^ 

The  same  principle  applies  whether  the  claim  of  interest  is 
made  against  the  maker  of  a  note  or  acceptor  of  a  hill,  or 
whether  it  be  made  against  the  indorser  or  drawer.  But  here 
again  must  be  noted  the  line  of  cleavage  amongst  the  au- 
thorities as  to  what  is  the  locus  solutionis  of  the  indorser's  or 
drawer's  contract.  Some  of  the  cases  hold  that  interest  is  to  be 
computed  against  the  drawer  or  indorser  according  to  the  law 
of  the  place  where  the  bill  is  drawn  or  the  indorsement  is 
made  ;  '  while  others  have  held  that  the  interest  in  such  cases 
is  to  be  computed  according  to  the  law  of  the  place  where  the 
bill  or  note  is  payable.  The  latter  is  believed  to  be  the  better 
view.* 

A  somewhat  different  question  arises  in  cases  where  a  certain 
rate  of  interest  is  lawfully  reserved  in  the  contract  in  accordance 
with  its  lex  celebrationis,  payable  until  maturity,  no  provision 
being  made  for  interest  after  maturity.  If  in  such  case  we 
suppose  the  lex  solutionis  of  the  contract  to  authorize  a  differ- 
ent rate  of  interest  from  that  expressly  reserved  in  the  contract, 
it  becomes  important  to  ascertain  which  law  shall  govern  the 
interest  after  maturity.  The  parties  having  shown  their  in- 
tention to  contract  for  interest  under  the  law  of  the  place  where 
the  contract  is  made,  that  law  should  govern  also  as  to  the 

1  CogWan  V.  R.  R.  Co.,  142  U.  S.  101;  Scotland  County  v.  Hill,  132  U.  S. 
107,  117;  Lanusse  v.  Barker,  3  Wheat.  101  ;  Kavanaugh  v.  Day,  10  R.  I.  393, 
14  Am.  Rep.  691 ;  Peck  v.  Mayo,  14  Vt.  33,  39  Am.  Dec.  205  ;  Crawford  v. 
Bank,  6  Ala.  12,  41  Am.  Dec.  33 ;  Morris  v.  Wibaux,  159  111.  627,  43  N.  E. 
837;  Stickney  v.  Jordan,  58  Me.  106,  4  Am.  Rep.  251;  Sutro  Tunnel  Co.  v. 
Mining  Co.,  19  Nev.  121,  7  Pac.  271,  278  ;  Stepp  v.  Association,  37  S.  C. 
417,  16  S.  E.  134  ;  Cooper  v.  Sandford,  4  Yerg.  (Tenn.)  452,  26  Am.  Dec. 
239  ;  Ayer  v.  Tilden,  15  Gray  (Mass.),  178,  77  Am.  Dec.  355  ;  Consequa  v. 
Fanning,  3  Johns.  Ch.  (N.  Y.)  587,  610 ;  Fanning  v.  Consequa,  17  Johns. 
(N.  Y.)  511,  8  Am.  Dec.  442 ;  Scofield  v.  Day,  20  Johns.  102  ;  Gibbs  v.  Fre- 
mont, 9  Exch.  24 ;  Cooper  v.  Earl  of  Waldegrave,  2  Beav.  282,  284. 

'^  Gibbs  V.  Fremont,  9  Exch.  24 ;  Crawford  v.  Bank,  6  Ala.  12,  41  Am. 
Dec.  33. 

'  Peck  V.  Mayo,  14  Vt.  33,  39  Am.  Dec.  205  ;  Mullen  v.  Morris,  2  Ban 
iPenn.),  35.     See  ante,  §  165. 


456  OBLIGATION   TO  PAY  INTEREST.  §  184 

anmentioned  interest  after  maturity.*  But  if  the  rate  of  in- 
terest legally  agreed  upon  before  maturity  is  that  of  the  place 
of  performance,  the  latter  law  will  govern  interest  falling  due 
after  maturity.® 

In  Scotland  County  v.  Hill,*  a  Missouri  county  issued  bonds 
payable  in  New  York,  with  coupon  notes  attached  representing 
interest,  also  payable  in  New  York.  The  contract  was  silent 
upon  the  point  whether  or  not  the  coupon  notes  should  them- 
selves bear  interest.  It  was  held  that  the  New  York  law  (lex 
solutionis),  not  that  of  Missouri,  should  govern  as  to  the  charg- 
ing of  interest  upon  the  coupons  after  maturity. 

If  a  judgment  be  obtained  in  one  State  upon  a  contract  to  pay 
money  in  another,  it  should  be  observed  that  while  judgment 
will  be  given  for  the  principal  sum  due,  with  interest  computed 
according  to  the  law  of  the  place  where  the  contract  is  payable, 
yet  interest  upon  thdiA,  judgment,  if  unpaid,  will  be  computed  in 
accordance  with  the  law  of  the  place  where  the  judgment  is 
rendered,  so  far  as  the  courts  of  that  State  are  concerned.''  But 
if  an  action  is  brought  in  another  State  upon  such  judgment,  it 
has  been  held  that  interest  wiU  be  allowed  thereon  according  to 
the  law  of  the  latter  State  (lex  fori),  whether  or  not  the  judg- 
ment sued  on  specifies  the  rate  of  interest  it  is  to  bear.^ 

In  conclusion,  it  must  be  noticed  that  no  question  of  usury 
or  of  invalidity  can  ever  arise  upon  a  contract  where  no  specific 
rate  of  interest  is  agreed  upon.  In  such  cases  interest  is 
allowed  according  to  the  lex  solutionis,  even  though  the  con- 
tract might  have  been  declared  usurious  and  void  if  the  same 

*  Cromwell  v.  County  of  Sac,  96  U.  S.  51. 

»  Coghlan  v.  R.  R.  Co.,  142  U.  S.  101. 

«  132  U.  S.  107. 

'  Scotland  County  v.  Hill,  132  U.  S.  107. 

8  Clark  V.  Child,  136  Mass.  344  ;  Wells,  Fargo,  &  Co.  v.  Davis,  105  N.  Y. 
670 ;  Neil  v.  Bank,  50  Ohio  St.  193,  33  N.  E.  720.  And  this  would  seem  to 
be  correct  upon  principle,  at  least  in  those  cases  where  the  interest  upon  the 
first  judgment  by  the  law  of  its  situs  is  greater  than  that  authorized  by  the 
lex  fori ;  because  the  charge  thus  created  is  imposed  upon  the  defendant  in 
invitum,  and  hence  the  foreign  law  under  which  it  is  claimed  should  not  be 
given  exterritorial  force.  This  is  not  to  deny  "full  faith  and  credit"  to  the 
foreign  judgment. 


§  185    COVENANTS  AND  CONTBACTS  TOUCHING  LAND.    457 

rate  of  interest  had  been  expressly  agreed  upon,  provided  th« 
arrangement  is  not  merely  a  cloak  for  usury.' 

§  185.  Covenants  and  Contracts  touching  Land. — With 
respect  to  the  proper  law  governing  the  obligations  incurred 
upon  covenants  of  title  and  the  like,  contained  in  deeds  of  con- 
veyance of  land  and  upon  contracts  relating  to  or  affecting  real 
estate,  much  diversity  of  opinion  exists.  The  disturbing  ele 
ment  is  found  in  the  influence  to  be  given  in  such  cases  to  the 
lex  situs  of  the  land. 

Here  also  the  chief  diflBculty  lies  in  ascertaining  the  locus 
solutionis  of  the  covenant  or  contract.  Thus,  a  deed  containing 
covenants  is  made  in  one  State,  conveying  land  situated  in 
another.  It  does  not  necessarily  follow  that  the  covenant  is  to 
be  performed  where  the  land  lies,  even  though  it  affects  the 
title  to  the  land.  If  such  a  deed  contains  a  covenant  to  repair 
or  to  pay  taxes,  or  to  do  any  other  act  which  must  be  done  where 
the  land  lies,  its  locus  solutionis  is  clearly  the  situs  of  the  land. 
But  if  we  suppose  a  covenant  of  title,  as  that  the  grantor  is 
seised  in  fee,  or  that  he  has  full  power  to  convey  the  land  in 
fee,  it  is  not  easy  to  say  whether  such  a  covenant  is  to  be  per- 
formed where  the  land  lies  or  is  to  be  performed  generally,  that 
is,  where  the  covenant  is  made.  The  question  is  of  importance, 
since  the  obligations  incurred  by  the  covenantor  will  depend 
upon  the  lex  solutionis.  The  better  opinion  seems  to  be  that 
the  lex  situs  of  the  land  should  govern,  so  far  as  covenants  of 
title  running  with  the  land  are  concerned,  since  the  grantor 
must  be  presumed  to  be  acquainted  with  that  law  as  well  as  his 
own,  and  to  hold  otherwise  would  tend  to  make  the  title  to  the 
land  uncertain.^ 

9  Peck  V.  Mayo,  14  Vt.  33,  39  Am.  Dec.  205.  For  the  "proper  law" 
governing  the  rate  of  exchange  in  respect  to  foreign  contracts,  the  reader  ia 
referred  to  the  lucid  discussion  in  Mr.  Justice  Story's  great  work.  See  Story, 
Confl.  L.  §§  308  et  seq. ;  Greenwald  r.  Freese  (Cal.),  34  Pac.  73. 

1  Succession  of  Caasidy,  40  La.  Ann.  827,  5  So.  292 ;  Kling  v.  Sejour, 
4  La.  Ann.  128  ;  Riley  v.  Burroughs,  41  Neb.  296,  59  N.  W.  929  ;  Fisher  v. 
Parry,  68  Ind.  465  ;  Tillotson  v.  Prichard,  60  Vt.  94,  14  Atl.  302,  308.  In 
Indiana,  the  doctrine  is  that  the  lex  celebrationis  of  the  covenant  is  also  th« 
lex  solutionis,  and  must  control.  See  Worley  v.  Hineman,  6  Ind.  App.  240, 
33  N.  E.  260;  Cochran  ».  Ward,  5  Ind.  App.  89,  29  N.  E.  795,  796;  Jackson 


458  COVENANTS  AND  CONTRACTS  TOUCHING  LAND.  §  185 

In  Riley  v.  Burroughs,'  a  deed  was  made  in  Nebraska  to  a 
tract  of  land  in  Iowa,  containing  a  covenant  against  incum- 
brances. There  had  been  several  prior  conveyances  of  the  land, 
each  containing  the  same  covenant,  and  all  the  time  there  had 
been  some  unpaid  taxes  outstanding  which  constituted  a  lien  on 
the  land.  The  owner  of  the  land  sued  a  remote  grantor  for  the 
breach  of  the  covenant.  By  the  law  of  Nebraska  such  a  cove- 
nant was  personal  only,  and  none  but  the  immediate  grantor 
could  be  sued  for  its  breach.  By  the  law  of  Iowa  it  ran  with  the 
land,  and  a  remote  grantor  might  be  sued  as  well  as  the  imme- 
diate grantor.     It  was  held  that  the  law  of  Iowa  should  prevail. 

In  Succession  of  Cassidy,*  Henry  Cassidy  sold  in  Louisiana 
certain  lands  situated  in  Texas,  with  covenants  of  general  war- 
ranty, to  Horace  Cassidy,  who  sold  them  in  Texas  with  like 
covenants  to  the  plaintiffs.  By  the  law  of  Louisiana  suit  could 
be  brought  upon  such  covenants  only  against  the  immediate 
grantor,  bringing  in  remote  vendors  as  parties.  In  Texas,  the 
common  law  prevailed,  by  which  a  suit  might  be  brought  upon 
a  breach  of  covenant  of  title  against  any  grantor  in  the  chain  of 
title.  Suit  was  brought  in  Louisiana  by  the  plaintiffs  against 
the  estate  of  Henry  Cassidy,  they  having  been  evicted  by  title 
paramount.  Upon  the  first  hearing,  the  court  decided  that  the 
Louisiana  law  should  govern,  since  the  matter  related  to  the 
remedy.  But  upon  a  rehearing,  it  was  held  that  the  Texas  law 
should  prevail,  as  it  was  a  matter  relating  to  the  obligation  of 
the  contract. 

That  the  lex  situs  of  the  land  will  also  govern  the  obligation 
of  a  contract  to  convey  the  same,  the  contract  being  made  in 
another  State,  can  hardly  admit  of  doubt,  for  the  situs  of  the 
land  is  necessarily  the  ultimate  locus  solutionis  of  the  contract 
to  convey  it;  and  by  that  law  the  measure  of  performance  must 
be  regulated.* 

The  right  of  one  who  contracts  with  another  to  build  or  fur- 

V.  Green,  112  Ind.  341,  14  N.  E.  89  ;  Bethell  v.  Bethell,  54  Ind.  428,  23  Am. 
Rep.  650. 

*  41  Neb.  296,  59  N.  W.  929.  »  40  La.  Ann.  827,  5  So.  292. 

«  See  Garden  City  Sand  Co.  v.  Miller,  157  111.  225,  41  N.  E.  753  ;  Car- 
negie  v.  Morrison,  2  Met.  (Mass.)  381,  398.     This  inquiry  must  not  be  c<m« 


§  186       INTERPRETATION  OP  CONTRACTS.        459 

nish  materials  for  the  latter,  to  take  out  a  mechanic's  lien  upon 
the  latter's  houses  or  lands,  is  not  a  part  of  the  obligation  of 
the  contract,  but  is  an  incident  annexed  by  law  to  the  act 
of  building  or  furnishing  materials  for  another.  Hence,  if  a 
mechanic's  lien  is  validly  created  according  to  the  lex  situs  of 
the  land,  it  is  immaterial  that  the  contract  of  which  it  is  the 
outcome  is  subject  to  a  different  law.' 

§  186.  Interpretation  of  Contracts.  —  In  ascertaining  the 
obligation  of  a  contract  (excluding  matters  of  validity),  the 
important  point,  as  we  have  seen,  is  to  ascertain  the  intention 
of  the  parties.  If  the  contract  is  silent  with  respect  to  certain 
obligations  of  the  parties,  and  they  have  neither  expressly  nor 
impliedly  indicated  any  law  by  which  they  intend  those  matters 
to  be  regulated,  the  general  rule  is  that  the  law  of  the  place  where 
they  propose  to  act  under  the  contract  shall  determine  what 
they  must  do  in  performance  thereof. 

We  now  come  to  an  examination  of  the  law  that  should  con- 
trol in  those  cases  where  the  parties  have  foreseen  a  certain  con- 
tingency, and  have  attempted  in  their  contract  to  provide  for  it, 
but  in  doing  so  have  used  language  susceptible  of  different 
interpretations  in  different  States  or  countries.  It  is  immaterial 
whether  the  ambiguous  terms  are  technical  legal  phrases  or 
belong  to  the  ordinary  language  of  the  people,  or  whether  the 
differences  of  meaning  are  due  to  the  laws  or  to  the  ctistoms  of 
the  several  States.  The  result  is  the  same ;  the  parties  have 
used  terms  which  have  one  meaning  in  one  State  and  a  differ- 
ent meaning  in  another.  The  question  is  which  meaning 
shall  be  attached  to  the  words  used. 

fused  with  that  touching  the  proper  law  regulating  th&  formal  validity  of  such 
contract  or  the  capacity  of  the  vendor  to  enter  into  it.  With  respect  to  these 
matters,  it  is  believed  that  the  proper  law  will  depend  upon  whether  the  con- 
tract is  treated  as  an  equitable  conveyance  of  the  land,  or  merely  as  an  ordi- 
nary personal  contract,  a  breach  of  which  is  to  be  compensated  in  damages. 
If  the  former,  the  lex  situs  of  the  land  should  govern  ;  if  the  latter,  the  lex 
celebrationis  of  the  contract.  Ante,  §§  12,  174.  See  Poison  r.  Stewart,  167 
Mass.  211,  45  N.  E.  737. 

»  U.  S.  Investment  Co.  v.  Windmill  Co.,  54  Kan.  144,  37  Pac.  982  ;  Camp- 
bell V.  Coon,  149  N.  Y.  556,  44  N.  E.  300.  The  lex  situs  will  regulate  »I1 
charges  and  liens  upon  real  estate.     Ante,  §  12. 


460  INTERPRETATION   OP  CONTRACTS.  §  186 

The  same  principles  control  in  this  case  as  are  applied  in 
ascertaining  the  implied  obligations  of  the  contract,  for  tho 
design  of  the  inquiry  is  the  same  in  both  cases,  namely,  to  dis- 
cover what  the  promisor  has  contracted  to  do. 

If  the  parties  expressly  refer  to  the  law  or  usage  of  a  particular 
State  as  a  guide  to  ascertain  the  meaning  of  the  terms  they 
have  used,  whether  that  State  be  the  locus  celebrationis  or  the 
locus  solutionis  of  the  contract  or  a  third  State,  such  law  or 
usage  becomes  part  of  their  contract.  So  it  is  also  if  the  sur- 
rounding circumstances  clearly  point  to  the  law  or  usage  of 
some  particular  State  as  in  the  minds  of  the  parties,  though 
they  are  silent  on  the  subject  themselves.^ 

But  if  the  parties  have  not  thus  expressly  or  by  implica- 
tion indicated  the  law  or  usage  of  any  other  State  as  the 
guide  to  their  meaning,  the  locus  solutionis  of  the  contract  will 
be  looked  to,  just  as  it  would  be  if  the  implied  obligations  of 
the  parties  were  in  question,  and  for  the  same  reason ;  because, 
in  the  absence  of  evidence  of  other  intent,  the  parties  must  be 
presumed  to  have  in  mind  for  the  purpose  of  performance  the 
law  and  usage  of  the  place  of  performance.  Slight  evidence  of 
a  different  intent  may  suffice  however  to  alter  this  rule,  and  to 
cause  the  lex  solutionis  to  yield  to  some  other  law  as  the  guide 
to  the  parties'  intention;  and  the  evidence  may  be  circumstan- 
tial as  well  as  direct. 

Thus,  it  is  a  general  rule  that  the  language  used  in  a  life 
insurance  policy,  designating  the  beneficiary  (subject  to  statu- 
tory or  charter  restrictions  as  to  who  may  be  designated),  is  to 
be  regarded  as  the  language  of  the  assured  alone  and  is  to  be 
treated  as  of  a  testamentary  character,  receiving  as  nearly  as 
possible  the  same  construction  as  if  used  in  a  will  under  the 
same  circumstances.  Hence  the  phrase  "  heirs  "  or  ''heirs  at 
law,"  etc.,  in  a  policy  of  life  insurance  is  to  be  construed,  in 
the  absence  of  evidence  of  a  contrary  intent,  in  accordance  with 
the  lex  domicilii  of  ,the  assured,  though  the  insurance  contract 
is  entered  into  or  payable  in  another  State,  by  whose  law  such 
terms  would  be  given  a  different  meaning.* 

1  Dicey,  Confl.  L.  57-59. 

2  Knights  Templar  Association   i;.  Greene,   79  Fed.  461;    Northwestern 


§  136  INTEKPIIETATION   OP  CONTRACTS.  461 

In  Heebner  v.  Ins.  Co.,'  a  policy  of  insurance  upon  a  ship 
was  written  in  one  State  and  signed  there  by  the  president  and 
secretary  of  the  company,  which  was  established  there.  It  was 
however  stipulated  that  it  was  not  to  be  binding  until  counter- 
signed by  the  agent  in  Massachusetts.  The  insurance  was 
against  **  total  loss  only."  The  ship  was  captured  and  con- 
demned as  prize,  whereupon  the  owner  notified  the  underwriters 
that  he  abandoned  the  ship  and  claimed  as  for  a  total  loss.  The 
court  held  that  the  Massachusetts  law  should  determine  not 
only  whether  a  total  loss  had  occurred,  but  what  was  the  effect 
thereof;  and  accordingly  decided  that  the  phrase  ''total  loss" 
covered  a  constructive  loss,  that  the  notice  given  the  under- 
writers was  a  sufficient  abandonment,  and  that,  according  to  the 
Massachusetts  rule,  one  third  new  for  old  was  to  be  deducted  in 
estimating  the  constructive  total  loss. 

In  London  Assurance  v.  Companhia  de  Moagens,*  a  cargo  of 
wheat  was  shipped  on  a  British  steamer  at  New  York  for  Lis- 
bon, and  was  insured  by  an  English  company,  through  its 
agents  in  Philadelphia,  "free  of  particular  average  unless  the 
vessel  be  sunk,  burned,  stranded,  or  in  collision"  all  losses  to 
be  paid  in  sterling  at  the  company's  offices  in  London,  and 
"  claims  to  be  adjusted  according  to  the  usages  of  Lloyds." 
The  ship  was  in  collision  before  it  left  port,  and  the  consequent 
injury  to  the  vessel  and  bad  weather  causing  some  leakage,  the 
salt  water  entered  and  injured  a  cargo  of  wheat.     The  captain 

Association  v.  Jones,  154  Penn.  St.  99,  26  Atl.  253 ;  Masonic  Association  i;. 
Jones,  164  Penn.  St.  107,  26  Atl.  255.  In  Mullen  v.  Reed,  64  Conn.  240,  29 
Atl.  478,  a  life  insurance  policy  was  issued  in  Massachusetts  to  a  resident 
of  that  State,  being  written  in  favor  of  the  assured's  "heirs  at  law."  The 
assured  afterwards  changed  his  domicil  to  Connecticut  and  died  there.  The 
court  held  that  the  law  of  Massachusetts,  not  that  of  Connecticut,  should 
control  the  meaning  to  be  attached  to  the  phrase.  This  decision  was  clearly 
correct ;  for  whatever  the  rule  may  be  touching  the  law  that  should  govern 
the  interpretation  of  a  revocable  vnll,  upon  a  change  of  the  testator's  domicil 
(ante,  §  148),  the  above  rule  must  be  applied  to  a  contract,  whose  obligation 
attaches  at  the  time  it  is  made,  and  cannot  afterwards  be  altered  save  by  the 
mutual  consent  of  the  parties. 

»  10  Gray  (Mass.),  131. 

*  167  U.  S.  149,  160,  167. 


462  INTERPRETATION   OF   CONTRACTS.  §  18d* 

of  the  ship  found  it  necessary  to  put  in  at  Boston,  and  after  a 
survey  decided  to  sell  the  whole  cargo  for  the  benefit  of  all  con- 
cerned. The  question  was  made  whether  the  insurance  contract 
covered  this  loss,  and  it  was  held  that  the  law  of  England  (lex 
solutionis),  being  the  law  with  reference  to  which  the  parties 
contracted,  must  govern  the  interpretation  of  the  terms  used  in 
the  contract.  The  insurance  company  was  held  to  be  respon- 
sible for  the  loss,  because  according  to  the  English  doctrine 
"if  a  ship  be  once  in  collision  during  the  adventure,  after  the 
goods  are  on  board,  the  insurers  are  by  the  law  of  England 
liable  for  a  loss  covered  by  the  general  words  in  the  policy, 
though  such  loss  is  not  the  result  of  the  original  collision,  and 
but  for  the  collision  would  have  been  within  the  exception  con- 
tained in  the  memorandum,  and  free  from  particular  average  aa 
therein  provided." 

In  First  Nat.  Bank  v.  Shaw,*  the  question  was  as  to  the  mean- 
ing of  the  phrase  "B'k  %  to  T.  W.  Griffin  &  Co.,"  occurring  in 
a  bill  of  lading,  executed  in  Toledo,  Ohio,  of  merchandise  there 
shipped  to  New  York  and  delivered  in  Ohio  to  secure  advances 
made  to  the  consignee  in  New  York.  The  court,  holding  that 
the  phrase  was  to  be  interpreted  according  to  the  business  usage 
in  Toledo,  said  in  the  course  of  its  opinion :  ' '  The  true  inquiry 
is,  what  was  the  intent  of  the  parties.  It  would  seem  in  a  case 
like  the  present,  when  the  contract  was  made  in  Ohio  by  Toledo 
parties,  the  money  being  advanced  there  and  the  security  taken 
there,  that  they  had  in  view  in  employing  words  their  own 
usages,  even  though  the  goods  were  to  be  sent  to  another  State 
and  ultimately  sold  there  if  the  advances  were  not  repaid."  ' 

Other  examples  might  be  given.  The  terms,  ''dollars,"' 
^'pounds,"*  "usance,"'  "month,"  ^**  etc.,  are  instances  of 
words  possessing  different  meanings  in  different  countries,  with 
regard  to  which  questions  of  this  sort  may  arise. 

*  61  N.  Y.  283,  293-294. 

•  See  Huse  v.  Hamblin,  29  la.  501,  4  Am.  Rep.  244. 
T  Greenwald  v.  Freese  (Cal.),  34  Pac.  73. 

8  Story,  Confl.  L.  §  271. 

9  Story,  Confl.  L.  §  271. 
M  Story,  Confl.  L.  §  270. 


§  186  INTERPRETATION   OF   CONTRACTS.  463 

A  fuller  examination  of  the  authorities  would  be  of  little  ser- 
vice, since  the  circumstances  of  each  case  must  be  looked  to  in 
order  to  ascertain  the  intention  of  the  parties.^^ 

11  The  reader  is  referred  to  Whart.  Confl.  L.  §§  433-439,  where  an  attempt 
has  been  made  to  deduce  some  general  principles  from  the  decided  cases. 


464  ACTUAL  PEBFOBMANCE  OB.  TE^^DEB.  §  188 


CHAPTER  XIX. 

DISCHARGE  OF   CONTRACTS. 

§  187.  Various  Sorts  of  Discharge.  —  Under  the  term  dis' 
charge  of  a  contract  are  comprised  all  matters  which,  arising 
superveniently  to  the  execution  of  the  contract,  may  he  urged 
as  a  total  or  partial  defense  to  an  action  brought  to  enforce  it. 
They  may  consist  in  the  actual  performance  of  the  contract,  or 
tender  of  performance,  in  exact  accord  with  its  terms;  of  the 
substitution  of  a  new  agreement  therefor,  a  release,  or  a  mutual 
rescission  of  the  contract ;  of  the  discharge  of  a  surety  by  the 
discharge  of  the  principal  or  the  extension  of  time,  or  a  dis- 
charge in  bankruptcy,  etc. 

These  various]^matters  of  discharge  may  be  classified  into  three 
main  groups,  as  follows :  (1)  Those  which  result  from  the  per- 
formance, or  tender  of  the  performance,  of  the  contract  accord- 
ing to  its  exact  terms;  (2)  Those  resulting  from  a  supervenient 
agreement  or  understanding  of  the  parties  ;  and  (3)  Those  re- 
sulting from  the  mere  operation  of  the  law  itself,  without  any 
express  agreement  of  the  parties  to  that  effect,  and  without  per- 
formance, or  offer  of  performance,  by  the  promisor. 

These  several  sorts  of  discharge,  being  entirely  distinct  in 
character,  are  regulated  by  different  principles.  It  cannot  be 
expected,  nor  is  it  true,  that  the  same  law  will  govern  them 
all.  The  nature  of  the  particular  matter  of  discharge  pleaded 
must  first  be  ascertained  before  the  proper  law  controlling  its 
effect  can  be  determined. 

§  188.  Discharge  by  Actual  Performance  or  Tender.  —  If  it 
be  alleged  that  the  contract  has  been  discharged  in  whole  or  in 
part  by  the  actual  performance  thereof  according  to  its  terms,  the 
truth  of  the  allegation  becomes  a  mere  question  of  fact  after  it 
has  been  once  ascertained  what  duties  the  contract  imposes  on 


§  188  ACTUAL  PERFOBMANCE  OB  TENDEB.  465 

the  promisor.  All  that  is  necessary  is  to  apply  the  principles 
already  considered,  by  which  to  determine  the  proper  law 
governing  the  obligation  and  interpretation  of  the  contract, 
that  is  to  say,  the  lex  solutionis  of  the  contract  (in  the  absence 
of  evidence  that  the  parties  had  in  view  a  different  law).^  As 
has  been  said  by  the  Supreme  Court  of  the  United  States  in 
a  leading  case,*  speaking  of  the  proper  law  governing  a  con- 
tract :  * '  Matters  connected  with  its  performance  are  regulated 
by  the  law  prevailing  at  the  place  of  performance." 

Thus  in  an  English  case  '  it  was  held  that  a  contract  payable 
in  South  Carolina  was  validly  discharged  by  its  payment  in 
South  Carolina  in  depreciated  paper  money,  which  was  there 
legal  tender. 

In  Graham  v.  Bank,*  Graham  and  his  wife  resided  in  Mary- 
land. The  wife  being  the  owner  of  certain  shares  of  stock  in  a 
bank  in  Norfolk,  Virginia,  dividends  accrued  upon  the  shares, 
and  were  paid  by  the  bank  officers  to  her  husband.  By  the  law 
of  Maryland  the  wife  was  entitled  to  the  sole  and  separate  use 
and  control  of  her  property.  In  Virginia  the  common  law  pre- 
vailed, and  the  husband  could  give  a  valid  acquittance  of  the 
wife's  debts.  The  question  was  whether  the  bank's  payment  of 
the  dividends  to  the  husband  constituted  a  valid  discharge  of 
its  obligation  to  pay  dividends  on  the  wife's  stock.  The  New 
York  court  held  that  since  the  dividends  were  payable  in  Vir- 
ginia, a  payment  according  to  Virginia  law  was  sufficient, 
though  by  the  lex  domicilii  the  husband  was  not  entitled  to 
the  wife's  personalty.  Though  the  husband  was  bound  to 
account  to  the  wife  for  the  dividends  under  the  law  of  Mary- 
land, the  payment  to  the  husband  discharged  the  bank  under 
the  law  of  Virginia.* 

1  See  Denny  v.  Williams,  5  Allen  (Mass.),  1  ;  May  v.  'Breed,  7  Cush. 
(Mass.)  15,  54  Am.  Dec.  700. 

2  Scudder  v.  Bank,  91  U.  S.  406,  413. 
»  Anon.,  1  Bro.  Ch,  Cas.  376. 

*  84  N.  Y.  393,  38  Am.  Rep.  528. 

'  If  the  bank  had  pleaded  a  release  by  the  husband,  instead  of  payment  to 
him,  the  husband's  title  would  have  depended  upon  the  Maryland  law  (lex 
domicilii),  and  so  would  the  validity  of  the  releasft 

30 


466  ACTUAL   PERFORMANCE   OR  TENDER.  §  18^1 

But  a  performance  "  in  accordance  with  the  terms  of  the  con- 
tract "  supposes  a  complete  compliance  with  its  terms  in  respect 
to  the  time  and  place  of  performance,  as  well  as  other  matters. 
Hence  a  performance,  though  otherwise  strictly  in  accordance 
with  the  terms  of  the  contract,  if  occurring  at  another  time  or 
place  than  that  named,  will  not  operate  to  discharge  the  con- 
tract, unless  accepted  by  the  promisee.  In  such  case,  the  dis- 
charge ceases  to  belong  to  the  first  class  and  becomes  a  discharge 
by  suhstitvied  agreement,  which  is  or  may  be  governed  by 
altogether  different  rules,  to  be  discussed  in  the  following 
section.* 

The  same  principles  govern  the  tender  of  performance  of  the 
contract  according  to  its  terms.  If  the  tender  is  made  at  the 
time  and  place  agreed  upon  for  performance,  the  sufficiency  of 
the  tender,  and  its  effect  as  a  total  discharge  of  the  contract  or 
as  to  sithsequently  accruing  interest  only,  is  to  be  determined 
by  the  lex  solutionis  of  the  contract,  unless  the  parties  had  in 
mind  a  different  law  when  they  entered  into  the  contract.' 

Thus,  in  Searight  v.  Calbraith,'  a  bill  of  exchange  was  drawn 
in  Pennsylvania,  payable  in  Paris,  and  accepted  there.  Upon 
presentation  for  payment,  the  acceptors  offered  to  pay  in  French 
assignats  (paper  money),  which  was  in  France  a  legal  tender  for 
debts.  The  holder  insisted  on  payment  in  gold  or  silver.  It 
was  held  that  the  question  whether  this  was  a  proper  tender 
depended  upon  the  law  with  reference  to  which  the  parties  con- 
tracted. The  court  further  held  that  it  was  for  the  jury  to  de- 
termine what  law  the  parties  had  in  mind,  as  regulating  the 
mode  of  payment. 

In  Warder  v.  Arell,»  a  bond  was  made  in  Pennsylvania,  des- 
ignating no  place  of  payment.  On  the  day  appointed  for  pay- 
ment, the  obligor  tendered  the  money  in  bills  of  credit  issued 
by  the  Congress  of  the  United  States,  which  were  refused.  A 
Pennsylvania  statute,  in  order  to  sustain  the  value  of  these 

«  See  Vermont  Bank  v.  Porter,  5  Day  (Conn.),  316,  5  Am.  Dec.  157. 
7  Searight  v.  Calbraith,  4  Dall.  325,  327  ;  Warden;.  Arell,  2  Wash.  (Va.) 
882,  295,  1  Am.  Dec.  488.     See  Pritchard  v.  Norton,  106  U.  S.  124,  132. 
«  4  Dall.  325. 
•  2  Wash.  (Va.)  282,  1  Am.  Dec.  488. 


§  189     DISCHARGE  BY   SUBSTITUTED   AGREEMENT,         467 

bills,  had  enacted  that  one  refusing  to  accept  them  in  payment 
of  debts  should  forfeit  the  debt.  The  Virginia  court  held  that 
the  Pennsylvania  law  should  govern,  and  that  since  the  effect 
of  the  tender  and  refusal  there  was  to  discharge  the  contract 
totally,  the  same  effect  must  be  given  to  it  in  Virginia. 

On  the  other  hand,  a  tender  made  at  a  place  other  than  that 
agreed  upon  as  the  place  of  performance  of  the  contract,  though 
in  all  other  respects  conforming  to  its  terms,  may  be  rejected 
by  the  promisee.     Unless  accepted  by  him,  it  is  of  no  effect." 

§  189.  Discharge  by  Substituted  Agreement.  —  Under  this 
head  are  to  be  included  all  those  acts  which,  while  not  constitut- 
ing an  exact  performance  of  the  contract  according  to  its  terms, 
yet  operate  as  a  discharge  because  intended  and  accepted  as  such 
by  the  parties. 

Thus  the  payment  of  a  bond  or  note,  made  at  a  time  or  place 
other  than  that  expressly  agreed  upon,  a  release,  a  mutual 
rescission  of  the  contract,  the  substitution  of  a  new  agreement, 
etc.,  are  instances  of  this  sort  of  discharge.  In  all  these  cases 
the  effect  of  the  discharge  is  due  to  the  subsequent  agreement 
of  the  parties. 

If  the  intention  of  the  parties  is  clear,  and  that  intention  is 
validly  executed,  the  effect  is  to  discharge  the  old  contract  and 
to  destroy  its  obligation  absolutely.  The  effect  of  such  subse- 
quent agreement  therefore  cannot  be  regarded  as  a  part  of  the 
obligation  of  the  original  contract.  Effect  i*  given  to  it,  if  at 
all,  not  because  of  any  intention  of  the  parties,  express  or  im- 
plied, contained  in  the  original  contract,  but  by  virtue  of  their 
subsequent  intention  as  displayed  actually  or  presumably  in 
their  new  agreement.  Hence  the  law  governing  the  obligation 
of  the  original  contract  has  no  necessary  connection  with  the 
effect  to  be  given  the  new  agreement,  which,  as  to  its  validity, 

w  Noyes  v.  Wyckoff,  114  N.  Y.  204,  21  N.  E.  158  ;  Abshire  v.  Corey,  113 
Ind.  484,  15  N.  E.  685  ;  People's  Bauk  v.  Norwalk,  56  Conn.  547,  16  Atl. 
257;  AUshouse  v.  Ramsay,  6  Whart.  (Penn.)  331,  37  Am.  Dec.  417.  If  no 
special  place  of  performance  is  agreed  upon,  the  suflBciency  and  effect  of  tin 
tender  will  be  governed  by  the  law  of  the  place  where  the  contract  is  made. 
See  Warder  v.  Arell,  2  Wash.  (Va.)  282,  1  Am.  Dec.  488  ;  Vermont  Banku 
Porter,  5  Day  (Conn.),  316,  5  Am.  Dec.  157. 


468  DISCHARGE  BY   SUBSTITUTED   AGREEMENT.     §  189 

its  obligation  and  effect,  and  its  interpretation,  must  be  con- 
trolled by  its  own  law. 

If  the  new  agreement  is  executed,  as  in  the  case  of  actual  per- 
formance at  a  time  or  place  other  than  that  agreed  upon  in  the 
original  contract,  or  in  case  of  a  release,  the  lex  loci  contractus 
will  control  its  validity,  obligation,  and  interpretation. 

Thus,  the  obligation  of  a  bond  or  other  sealed  contract  cannot 
by  the  common  law  be  released  except  by  an  instrument  of 
equal  dignity,  under  seal.  But  by  the  civil  law  it  is  otherwise. 
Hence  if  a  bond  made  and  payable  in  England  should  be  dis- 
charged in  France  (where  the  civil  law  prevails)  by  a  release 
not  under  seal,  it  should  be  considered  a  valid  discharge  every- 
where, including  England.^ 

But  if  the  substituted  agreement  is  executory,  to  be  performed 
in  some  State  other  than  that  wherein  it  is  made,  it  may  be  a 
more  difficult  matter  to  ascertain  the  law  which  should  deter- 
mine its  effect.  The  reasoning  above  given  would  seem  to  es- 
tablish definitely  that  the  law  governing  the  obligation  of  the 
original  contract  plays  no  part  in  the  solution  of  this  question. 
It  is  the  proper  law  governing  the  substituted  executory  contract 
■which  must  determine  its  effect. 

Its  validity  must  be  determined  by  the  same  law  that  governs 
the  validity  of  other  contracts,  that  is  to  say,  by  the  lex  celebra- 
tionis if  the  invalidity  relates  to  the  making  of  the  contract;  by 
the  lex  solutionis,  if  it  relates  to  the  performance ;  and  by  the 
lex  loci  considerationis,  if  it  relates  to  the  consideration. 

But  if  there  is  no  question  of  the  validity  of  the  substituted 
promise,  but  only  of  its  effect  as  a  discharge  or  merger  of  the 
original  contract,  this  is  a  matter  pertaining  to  the  obligation 
of  the  new  agreement,  and  primarily  depends  upon  the  parties' 
intention.  If  the  agreement  is  silent  upon  that  point,  its 
effect  must  be  determined  by  the  law  with  reference  to  which 
they  actually  or  presumably  contracted.  In  the  absence  of  evi- 
dence of  a  different  intent,  since  the  new  contract,  if  it  operates 
as  a  discharge  at  all,  takes  effect  as  soon  as  it  is  entered  into, 
not  when  it  is  performed,  the  parties  should  generally  be  pre^ 

1  Story,  Confl.  L.  §§  351  a,  351  b. 


§  190  DISCHARGE  BY  OPERATION   OP   LAW.  469 

sumed  to  have  in  view  the  law  of  the  place  where  it  is  entered 
into  (lex  celebrationis),  though  it  is  to  be  performed  elsewhere. 

Thus,  by  the  law  of  some  States,  in  the  absence  of  evidence  of 
a  different  intention,  a  note  given  for  an  antecedent  indebted- 
ness discharges  or  merges  the  original  indebtedness,  so  that 
thenceforth  action  can  be  brought  only  upon  the  note.  In  other 
States  this  is  not  the  case.  Some  of  the  decisions  seem  to  take 
the  view  that  the  effect  of  thus  taking  a  note  for  an  antecedent 
indebtedness  is  a  part  of  the  obligation  of  the  original  contract, 
to  be  determined  by  the  law  governing  its  obligation  (lex  solu- 
tionis).' But  the  better  opinion  is  that  the  effect  of  the  note, 
as  constituting  a  discharge  or  merger  of  the  original  indebted- 
ness, is  to  be  governed  by  the  lex  celebrationis  (not  the  lex 
solutionis)  of  the  note,*  unless  the  note  be  given  in  pursuance 
of  a  previous  agreement  of  the  parties  made  in  another  State, 
under  a  different  law. 

§  190.  Discharge  by  Operation  of  Law  —  In  Genered.  —  This 
sort  of  discharge  comprehends  all  those  supervenient  matters 
whicli,  though  not  supposing  a  performance  of  the  contract  nor 
a  substituted  agreement  of  the  parties,  yet  operate  by  mere  act 
of  the  law  in  discharge  of  the  contract.  The  alteration  or  inter- 
lineation of  written  contracts  in  material  points ;  the  discharge 
of  a  surety  by  reason  of  a  subsequent  change  in  the  terms  of  the 
principal  contract,  or  his  discharge  by  giving  notice  to  the  cred- 
itor to  sue ;  or  the  discharge  of  an  indorser  by  reason  of  failure 
to  give  him  due  notice  of  dishonor,  etc.,  are  instances  of  dis- 
charges resulting  purely  by  operation  of  law. 

It  is  well  settled  that  the  effect  of  acts  of  this  character, 
alleged  to  constitute  a  discharge  of  the  contract,  is  a  part  of 
its  obligation,  and  therefore  in  the  absence  of  evidence  of  other 
intent  it  is  to  be  regulated  by  the  lex  solutionis  of  the  contract, 
as  being  the  law  presumably  in  the  minds  of  the  parties  at  the 
time   the   promise    is   made.      Such   matters   constitute,  so  to 

2  Tarbox  v.  Childs,  165  Mass.  408,  43  N.  E.  124 ;  Vancleef  v.  Therasson, 
3  Pick.  (Mass.)  12;  Bartsch  v.  Atwater,  1  Conn.  409.  The  objections  to  this 
view  have  just  beeu  mentioned. 

»  Thomson-Houston  Electric  Co.  v.  Palmer,  52  Minn.  174,  53  N.  W.  1137j 
Oilman  v.  Stevens,  63  N.  H.  342,  1  Atl.  202. 


470  DISCHARGE  IN    BANKRUPTCY.  §  191 

speak,  implied  conditions  upon  which  the  contract  is  entered 
into,  a  breach  of  which  will  discharge  the  promisor  from  his 
obligation  to  perform  his  agreement. 

Many  illustrations  of  the  application  of  these  principles  have 
already  been  given  in  the  previous  chapter,  where  the  law 
governing  the  obligations  of  contracts  has  been  discussed,  and 
there  is  no  occasion  here  to  do  more  than  merely  refer  to  that 
discussion. 

§  191.  Same  —  Discharge  in  Bankruptcy. — The  discharge 
of  a  debtor  in  bankruptcy  belongs  in  the  main  to  that  class  of 
discharges  known  as  discharges  by  operation  of  law,  in  that  it 
neither  supposes  a  performance  nor  a  substituted  agreement. 
But  there  are  peculiar  features  pertaining  to  it  which  do  not 
permit  it  to  be  governed  altogether  by  the  same  principles  that 
control  other  discharges  by  operation  of  law. 

There  has  been  in  the  past  much  conflict  of  opinion  touching 
the  law  controlling  the  effect  upon  a  contract  of  a  discharge  in 
bankruptcy  or  insolvency.  This  conflict  seems  now  in  the  main 
to  be  happily  settled  in  this  country,  at  least  as  between  the 
States  of  this  Union,  by  the  decisions  of  the  United  States  Su- 
preme Court  and  the  later  decisions  of  the  State  courts.^ 

A  discharge  in  bankruptcy,  releasing  the  debtor  from  further 
liability  upon  a  judicial  ascertainment  of  the  fact  that  he  has 
surrendered  his  property  to  his  creditors,  differs  from  other  mat- 
ters of  discharge  by  operation  of  law,  in  that  its  effect  depends 
in  part  upon  a  judicial  proceeding  somewhat  in  the  nature  of  a 
forfeiture  of  the  rights  of  creditors.  In  order  that  a  tribunal 
may  decree  such  a  discharge,  or  at  least  in  order  that  its  decree 
should  have  any  exterritorial  effect,  justice  demands  that  the 
bankrupt's  creditors  should  be  given  an  opportunity  to  protect 
their  rights,  or  at  least  should  be  themselves  subject  to  the  law 
under  which  the  court  acts. 

*  These  earlier  views  are  discussed  and  commented  upon  in  Story,  Confl. 
L.  §§  335-351  d,  and  will  not  be  here  considered.  The  fallacy  of  these  cases 
lay  in  not  observing  the  dual  nature  of  the  discharge  in  bankruptcy  which, 
while  in  some  measure  dependent  for  its  eflFect  upon  the  obligation  of  the  con- 
tract, is  also  dependent  upon  the  jurisdiction  of  the  insolvency  court.  The 
latter  element  was  disregarded  in  the  earlier  cases. 


§  191  DISCHARGE  IN   BANKRDPTCl.  471 

But  a  discharge  in  bankruptcy  resembles  other  discharges  by 
operation  of  law  in  that  its  effect  is  a  part  of  the  obligation  of 
the  contract  alleged  to  be  thereby  discharged,  and  therefore  (sub- 
ject to  the  qualification  above  mentioned)  its  effect  must  depend 
upon  the  intention  or  understanding  of  the  parties  in  entering 
into  the  contract,  or,  in  the  absence  of  any  expression  by  them, 
upon  the  law  with  reference  to  which  they  must  be  presumed  to 
have  contracted  (lex  solutionis). 

Two  conditions  then  must  concur  in  order  to  give  such  a  dis- 
charge any  exterritorial  effect.  The  first  is  that  the  tribunal 
whose  duty  it  is  to  grant  the  certificate  of  discharge  should  have 
control  and  jurisdiction  over  the  creditor.  The  second  is  that 
the  "proper  law"  governing  the  obligation  of  the  contract 
should  recognize  such  a  discharge  as  a  valid  release  of  the 
debtor  from  further  obligation  to  perform  it. 

In  regard  to  the  first  of  these  conditions  (supposing  the  sec- 
ond complied  with) ,  it  has  been  held  repeatedly  by  the  Supreme 
Court  of  the  United  States  that  a  discharge  in  bankruptcy  or 
insolvency  granted  in  one  State  will  be  of  no  effect  in  another 
State  of  the  Union,  if  the  creditor  is  a  citizen  of  another  State 
than  that  of  the  discharge,  unless  by  voluntarily  taking  part  in 
the  insolvency  proceedings,  or  otherwise,  he  has  come  personally 
under  the  control  and  jurisdiction  of  the  court.**  For  ''when  in 
the  exercise  of  that  power  [to  discharge  a  debtor]  the  States  pass 
beyond  their  own  limits  and  the  rights  of  their  own  citizens, 
and  act  upon  the  rights  of  citizens  of  other  States,  there  arises 
a  conflict  of  sovereign  power  and  a  collision  with  the  judicial 
powers  granted  to  the  United  States,  which  renders  the  exercise 
of  such  a  power  incompatible  with  the  rights  of  other  States  and 
with  the  constitution  of  the  United  States."  ' 

It  will  be  observed  that  this  doctrine  rests  upon  the  theory 
that  the  federal   constitution  forbids  an    interference   by  one 

2  Sturges  V.  Crowninshield,  4  Wheat.  122 ;  Ogden  v.  Saunders,  12  "Wheat 
213  ;  Cook  v.  Moffat,  5  How.  295  ;  Baldwin  v.  Hale,  1  Wall.  223  ;  Oilman 
V.  Lockwood,  4  Wall.  409 ;  Denny  r.  Bennett,  128  U.  S.  489,  497.  See  Pul. 
len  V.  Hillman,  84  Me.  129,  24  Atl.  795;  Rosenheim  v.  Morrow,  37  Fla  183, 
20  So.  243. 

»  Baldwin  v.  Hale,  1  Wall.  223,  231. 


472  DISCHAEGE  IN   BANKBUPTCY.  §  l&I 

State,  having  no  jurisdiction,  with  the  rights  of  citizens  of 
another  State.  Under  this  theory,  not  only  has  the  insolvency 
court  of  the  first  State  no  jurisdiction  to  grant  the  debtor  a 
discharge  which  will  be  effective  in  other  States  as  against  a 
non-resident  creditor  not  within  its  control,  but  it  is  without 
jurisdiction  for  any  purpose  in  such  case.  The  discharge  will 
be  as  ineffectual  in  the  State  of  the  discharge  as  in  other 
States.* 

A  question  has  been  made  whether  the  principles  thus  laid 
down  by  the  Supreme  Court  are  applicable  to  the  case  of  a  cred- 
itor who  was  a  citizen  of  the  State  of  discharge  when  the 
contract  was  made,  but  who  has  subsequently  and  before  the  in- 
solvency proceedings  commenced  removed  out  of  the  jurisdiction 
into  another  State,  and  has  never  returned  thither,  nor  taken 
part  in  the  insolvency  proceedings.  But  it  now  seems  to 
be  settled  that  such  a  creditor  is  not  ipso  facto  subject  to  the 
insolvent  laws  of  his  former  domicil.  The  discharge  is  of  no 
effect  against  him,  unless  he  in  some  way  comes  personally 
within  the  jurisdiction  of  the  insolvency  court. ^ 

In  Chase  v.  Henry,'  an  action  was  brought  in  Massachusetts 
by  a  firm  consisting  of  three  partners,  two  of  whom  were  resi- 
dents of  Massachusetts  and  one  of  New  Hampshire,  The 
defendant  pleaded  a  discharge  in  insolvency  under  the  Massa- 
chusetts law,  which  the  plaintiffs  contended  was  of  no  effect 
as  to  any  of  them  because  it  was  a  debt  due  to  them  jointly, 
and  one  of  them  being  a  non-resident  of  Massachusetts  the  dis- 
charge could  not  be  pleaded  as  against  him.  And  the  court 
(divided  four  to  three)  so  held. 

Although  under  the  decisions  of  the  Supreme  Court  this 
result  is  attributed  to  the  operation  of  the  federal  constitution, 
and  hence  those  decisions  cannot,  in  strictness,  be  said  neces- 

*  Denny  v.  Bennett,  128  U.  S.  489  ;  Pulleu  v.  Hillmau,  84  Me.  129,  24 
Atl.  795  ;  Silverman  v.  Lessor,  88  Me.  599,  34  Atl.  526  ;  Stoddard  v.  Har- 
rington, 100  Mass.  87,  88. 

6  Pullen  V.  Hillman,  84  Me.  129,  24  Atl.  795  ;  Roberts  w.  Atherton,  60 
Vt.  563, 15  Atl.  159,  160  ;  Norris  v.  Atkinson,  64  N.  H.  87,  5  Atl.  710.  Bat 
see  Stoddard  v.  Harrington,  100  Mass.  87,  88. 

«  166  Mass.  577. 


§  191  DISCHARGE  IN   BANKRUPTCY.  473 

sarily  to  apply  to  cases  where  the  creditors  affected  are  citizens 
of  foreign  countries,'  yet  when  it  is  remembered  that  one  great 
purpose  of  the  constitution  was  to  recognize,  as  between  the 
States,  an  even  more  enlightened  comity  than  that  prevailing 
between  States  wholly  foreign  to  one  another,  and  to  enforce  in 
each  a  more  than  ordinary  respect  for  the  laws  and  judicial  pro- 
ceedings of  the  others,  it  will  be  seen  that,  when  the  Supreme 
Court  holds  that  a  discharge  in  insolvency  granted  in  one  State 
shall  have  no  effect  in  another  as  against  residents  of  other 
States,  a  fortiori  should  the  same  reasoning  prevent  foreign 
States  from  recognizing  such  a  discharge,  or  a  State  of  this 
Union  from  recognizing  such  a  discharge  in  a  foreign  country, 
as  against  creditors  not  resident  in  the  State  of  discharge  and 
taking  no  part  in  the  insolvency  proceedings. 

But  so  far  as  concerns  the  intra-territorial  effect  of  the  dis- 
aharge  in  the  State  where  it  is  granted,  there  may  be  a  decided 
difference  between  cases,  all  the  elements  of  which  have  their 
situs  within  the  United  States,  and  those  in  which  some  of  the 
elements  are  foreign,  for  example,  in  case  of  an  English  contract 
or  an  English  creditor.  It  is  believed  that  it  is  impossible  for 
any  court  in  this  Union  constitutionally  to  grant  a  discharge  in 
bankruptcy,  if  either  the  situs  of  the  contract  discharged  thereby 
or  the  situs  of  the  creditor  is  in  another  State  of  the  Union,  the 
creditor  taking  no  part  in  the  proceeding.^  But  the  federal 
constitution  does  not  extend  in  like  manner  to  protect  foreign 
contracts  and  foreign  creditors.  Their  rights  are  to  be  regu- 
lated in  each  State  by  its  own  law. 

We  have  heretofore  presumed  that  the  contract  alleged  to 
have  been  discharged  is  to  be  performed  in  the  State  of  the  dis- 
charge, so  that  the  parties  must  be  held  to  have  contemplated 
the  contingency  of  such  a  discharge  as  a  part  of  the  obligation 
of  the  contract ;  and  we  have  seen  that,  regardless  of  the  "  proper 
law,"  at  least  as  between  these  States,  unless  the  creditor  is 
subject  by  residence  or  otherwise  to  the  jurisdiction  of  the  in- 

''  Judge  Story  seems  to  take  this  view.  See  Story,  Confl.  L.  §  341.  But 
see  Story,  Confl.  L.  §§  349  et  seq. 

8  Cook  V.  Mofi"at,  5  How.  295,  308,  312;  Baldwin  v.  Hale,  1  Wall  223, 
232. 


474  DISCHARGE   IN   BANKRUPTCY.  §  191 

solvency  court,  it  has  no  power  to  grant  the  discharge.  The 
fact  that  the  situs  of  the  contract  is  elsewhere  than  in  the  State 
of  discharge,  and  that  the  law  of  that  situs  does  not  recognize 
such  discharges,  but  serves  to  emphasize  its  invalidity.  In  such 
case  the  situs  of  the  contract  is  immaterial. 

But  if  we  suppose  the  insolvency  court  to  have  jurisdiction 
of  the  creditor,  while  the  contract  itself  is  to  be  performed  in 
another  State  whose  law  does  not  recognize  a  discharge  in  bank- 
ruptcy or  insolvency,  the  question  is  squarely  presented  whether 
the  effect  of  the  discharge  shall  be  held  to  depend  wholly  upon 
the  jurisdiction  of  the  insolvency  court,  or  in  part  also  upon  the 
law  governing  the  obligation  of  the  contract  (lex  solutionis). 
It  is  believed  that  both  must  concur.'^ 

»  See  Baldwin  t- .  Hale,  1  WalL  223,  232 ;  Cook  v.  MoflFat,  5  How.  295, 
308,  312. 


I  \9St  TORTS,   LOCAL  AND   TRANSITORY.  475 

PART    VI. 

SITUS  OF  TORTS  AND  CRIMES. 


CHAPTER    XX. 

SITUS  OF  TORTS. 

§  192.  Locsd  and  Transitory  Actions.  —  A  tortious  liability 
may  be  briefly  described  as  any  private  liability  that  is  not  con- 
tractual.^ It  may  consist  of  an  injury  done  to  the  person  or  to 
property,  either  real  or  personal. 

If  an  injury  be  done  to  the  person  or  to  the  personalty  of  an- 
other, it  is  at  common  law  said  to  be  "transitory;"  that  is, 
the  liability  therefor  is  deemed  to  be  personal  to  the  perpetrator 
of  the  wrong,  following  him  whithersoever  he  may  go,  so  that 
compensation  may  be  exacted  from  him  in  any  proper  tribunal 
which  may  obtain  jurisdiction  of  the  defendant's  person,  the 
right  to  sue  not  being  confined  to  the  place  where  the  cause  of 
action  arises.^ 

1  Special  statutory  liabilities,  such  as  those  sometimes  imposed  by  law 
upon  the  stockholders  of  a  corporation  for  its  debts,  are  remedial  and  con- 
tractual in  their  nature,  not  tortious.  They  have  been  discussed  elsewhere. 
See  ante,  §  10. 

*  See  Dennick  v.  R.  R.  Co.,  103  U.  S.  11  ;  Stewart  v.  R.  R.  Co.,  168  U.  8. 
445,  448  ;  Evey  v.  R.  R.  Co.,  52  U.  S.  App.  118,  81  Fed.  294  ;  Helton  v.  R.  R. 
Co.,  97  Ala.  275, 12  So.  276,  282;  Herrick  v.  R.  R.  Co.,  31  Minn.  11,  47  Am. 
Rep.  771 ;  Nelson  v.  R.  R.  Co.,  88  Va.  971,  14  S.  E.  839  ;  De  Witt  v.  Buchanan, 
54  Barb.  (N.  Y.)  31;  Machado  v.  Fontes,  2  L.  R.  Q.  B.  D.  231.  With  re- 
spect to  torts  to  personal  property,  see  Southern  Pac.  Co,  v.  Graham,  12  Tex. 
Civ.  App.  565,  34  S.  W.  135  ;  Belknap  Sav.  Bank  v.  Robinson,  66  Conn.  542, 
34  Atl.  495.  It  is  to  be  observed  however  that  when  the  purpose  of  the  suit 
is  not  to  recover  damages,  but  a  specific  chattel  tortiously  taken  or  detained, 
and  that  alone  (not  the  alternative  value),  the  action  is  in  rem,  and  like  all 
such  proceedings  is  strictly  local,  since  in  a  proceeding  of  that  character  th« 


476  TOBTS,   LOCAL   AND   TRANSITORY.  §  192 

On  the  other  hand,  with  regard  to  real  property,  the  common 
law  held  not  only  that  actions  to  try  the  title  to  land  were  local 
(as  is  necessarily  the  case,  they  being  proceedings  in  rem),  but 
that  all  actions  for  trespasses  thereon  or  torts  thereto,  though 
in  personam,  were  local  also,  and  even  actions  ex  contractu  if 
the  defendant's  liability  depended  upon  ownership  of  the  land 
and  privity  of  estate,  as  where  the  defendant,  being  an  assignee 
of  the  land,  is  sued  for  a  breach  of  a  covenant  running  with  the 
land.' 

But  in  most  States  at  present  the  distinctions  of  the  common 
law  have  either  been  totally  abrogated  (save  where  the  suit  is 
upon  the  title)  or  have  been  regulated  by  statute.  Whether  a 
particular  action  is  to  be  regarded  as  local  or  transitory,  and 
hence  whether  a  remedy  shall  be  given  for  a  foreign  tort,  de- 
pends upon  the  lex  fori,  not  upon  the  law  of  the  place  where 
the  cause  of  action  arises.  The  question  relates  to  the  remedy, 
not  to  the  substantive  liability.*  But  the  modern  tendency  is 
to  throw  the  doors  of  the  courts  wide  open  to  the  complaints  of 
suitors  with  respect  to  injuries  perpetrated  in  other  States 
against  their  persons  or  property,  provided  proper  jurisdiction 
of  the  defendant  can  be  obtained,  the  citizenship  or  domicil  of 
either  party  being  generally  immaterial. ^  So  marked  indeed 
is  this  tendency  towards  liberality  in  these  cases,  that  it  has 
been  held  in  Minnesota,  where  a  tort  was  committed  upon  real 
property  in  another  State,  that  an  action  therefor  might  be 
brought  in  any  Minnesota  court  clothed  with  jurisdiction  of  the 
cause  and  of  the  parties,  though  the  Minnesota  statutes  provided 

court  must  have  jurisdiction  of  the  res.  Belknap  Sav.  Bank  v.  Robinson, 
supra. 

8  Huntington  v.  Attrill,  146  U.  S.  657,  669,  670 ;  Tillotson  v.  Prichard, 
60  Vt.  94,  14  Atl.  302,  307  ;  Worley  v.  Hineman,  6  Ind.  App.  240,  33  N.  E. 
260,  262. 

*  See  Huntington  v.  Attrill,  146  U.  S.  657,  669,  670  ;  "Worley  r.  Hineman, 
6  Ind.  App.  240,  33  N.  K  260,  262 ;  Pullman  Palace  Car  Co.  v.  Lawrence 
(Miss.),  22  So.  53,  55. 

6  Pullman  Palace  Car  Co.  v.  Lawrence  (Miss.),  22  So.  53,  55,  56;  St. 
Louis,  etc.  R.  R.  Co.  r.  Brown,  62  Ark.  254,  35  S.  W.  225,  226  ;  Mitchell  v. 
Harmony,  13  How.  115.  See  De  Witt  v.  Buchanan,  54  Barb.  (N.  Y.)  31? 
Whart.  Confl.  L.  §  478. 


§  193        TORTS,   COMMON   LAW  AND   STATUTORY.  477 

that  actions  for  torts  to  land  (in  Minnesota)  should  be  brought 
only  in  the  courts  of  the  county  where  the  land  lay.  Thus, 
although  torts  to  land  situated  in  Minnesota  remained  local 
under  the  laws  of  that  State,  torts  to  land  outside  the  State 
were  held  to  be  transitory. 

§  193.  Torts,  Common  La^v  and  Statutory.  —  In  countries 
whose  jurisprudence  is  founded  upon  the  common  law  of  Eng- 
land, a  primary  and  important  division  of  torts,  which  should 
be  noted  at  the  very  outset  of  this  discussion,  is  that  subsisting 
between  common  law  and  statutory  torts. 

Common  law  torts  are  such  as  are  actionable,  or  at  least  con- 
demned, by  the  common  law  without  the  aid  of  any  statute,  the 
demand  for  compensation  being  justified  both  upon  principles  of 
inherent  justice  and  of  expediency;  while  statutory  torts  com- 
prise those  acts  for  which  redress  is  given  by  statute,  but  which 
were  not  actionable  at  common  law,  either  because  no  essential 
principle  of  right  and  justice  demanded  it  or  because  redress 
could  not  be  afforded  without  violating  some  technical  rule  of 
the  common  law.^ 

1  Most  of  the  cases  hereafter  cited  sustain  this  division  of  torts.  But  In 
Stewart  v.  R.  R.  Co.,  168  U.  S.  445,  448,  this  classification  seems  to  be  dis- 
approved and  substituted  by  another,  referring  to  the  head  of  "  common  law 
torts,"  all  those  wrongs,  whether  actionable  at  common  law  or  not,  which  an 
inherent  sense  of  justice  demands  should  be  compensated  by  damages.  Hence, 
in  that  case,  notwithstanding  the  common  law  maxim  that  "  personal  actions 
die  with  the  person,"  and  the  rule  deduced  therefrom  that  a  death  by  wrong- 
ful or  negligent  act  was  not  actionable  at  common  law,  the  court  held  that  a 
tort  resulting  in  death  was  a  "  common  law  tort."  The  division  of  torts  thus 
adopted  by  the  Supreme  Court  in  Stewart  v.  R.  R.  Co.,  if  recognized  gener- 
ally, would  probably  revolutionize  the  whole  basis  upon  which  the  principles 
of  private  international  law  touching  torts  now  rest. 

Torts  committed  in  States  which  are  not  governed  by  the  common  law  at 
all,  as  those  States  whose  laws  are  based  upon  the  Roman  law,  would  seem 
naturally  to  fall  under  the  head  of  statutory  torts.  But  if  the  wrong  is  one 
which  an  inherent  sense  of  justice  demands  should  be  compensated  in  dam- 
ages, it  would  seem  that  the  distinction  taken  in  Stewart  v.  R.  R.  Co.,  supra, 
would  be  applied  to  it.  It  would  then  be  regarded  as  a  common  law  tort, 
and  strict  compliance  with  the  letter  of  the  lex  loci  delicti  (generally  required 
in  actions  upon  foreign  statutory  torts)  would  not  be  rigorously  demanded. 
See  Evey  v.  R.  R.  Co.,  52  U.  S.  App.  118,  81  Fed.  294,  38  L.  R.  A.  387.  Se« 
Ijost,  §  214,  note  4. 


478  TORTS,   COMMON  LAW  AND   STATUTOET.        §  193 

As  will  be  seen  hereafter,'  in  case  of  a  State  whose  jurispru- 
dence is  based  upon  the  common  law  and  whose  law  is  brought 
into  question  in  another  State,  the  presumption,  in  the  absence 
of  evidence  to  the  contrary,  is  that  the  common  law  remains  in 
force  unchanged  by  statute.  Hence,  a  tort  committed  in  one 
such  State,  which  is  actionable  at  common  law,  will  be  presumed 
in  the  courts  of  another  State  to  be  actionable  in  the  former;  *  and 
e  converso,  if  such  tort  is  not  actionable  at  common  law,  it  will 
not  be  presumed  by  the  courts  of  the  forum  to  be  actionable  in 
the  common  law  State  where  committed.*  In  the  latter  case  it 
must  be  shown  affirmatively  that  the  statutes  of  the  locus  delicti 
have  made  the  tort  actionable,  before  the  courts  of  the  forum 
will  entertain  the  action.^ 

If  the  lex  loci  delicti  is  not  based  upon  the  common  law,  but 
upon  the  Roman  law  or  some  other  system,  and  is  under  investi- 
gation in  a  State  based  upon  the  common  law  system,  no  pre- 
sumption will  ordinarily  arise  as  to  the  provisions  of  the  former 
law;  they  must  be  proved  as  facts.  Sometimes  however  the 
courts  of  the  forum  will  presume  a  foreign  law  to  be  the  same  as 
the  lex  fori.' 

From  what  has  already  been  said  it  will  be  seen  that  the  ex- 
istence or  recognition  of  a  statutory  tort  in  the  State  where  it  is 
committed  is  not  to  be  presumed  by  the  courts  of  other  States. 
The  statute  upon  which  it  rests  must  be  proved  as  a  fact.  That 
the  tort  complained  of  has  been  rendered  actionable  by  the  stat- 
utes of  the  forum  will  not  usually  furnish  any  ground  for  a  pre- 
sumption that  a  like  statute  exists  in  the  State  where  the  tort 
was  committed.' 

a  Post,  §  214. 

»  Whitford  v.  Panama  R.  R.  Co.,  23  N.  Y.  468 ;  Thurston  v.  Percival, 
1  Pick.  (Mass.)  415. 

«  Louisville  &  N.  R.  R.  Co.  v.  Williams,  113  Ala.  402,  21  So.  938  ;  Kahl 
V.  R.  R.  Co.,  95  Ala.  337,  10  So.  661,  662. 

6  Whitford  v.  Panama  R.  R.  Co.,  23  N.  Y.  468  ;  Kahl  ».  R.  R.  Co.,  95 
Ala.  337,  10  So.  661,  662.  But  see  post,  §  214,  as  to  presumption  that  the 
foreign  law  is  identical  with  lex  fori. 

®  This  whole  question  of  presumptions  touching  foreign  laws  is  discussed 
folly  hereafter.     See  post,  §  214. 

'  Huntington  v.  Attrill,  146  U.  S.  657 ;  Stewart  ».  R.  R.  Co.,  168  U.  S. 


§  194  EXCEPTIONS  TO  LEX  DELICTI.  479 

A  principal  distinction  between  common  law  and  statutory 
torts  committed  abroad  lies  in  tbe  fact  that,  if  the  tort  is  statu- 
tory, all  the  material  provisions  of  the  foreign  statute  must  be 
carried  out,  if  it  is  enforced  at  all,  whether  they  relate  to  the 
liability  of  the  defendant,  the  person  who  is  to  sue,  the  time 
within  which  the  suit  is  to  be  brought,  or  any  other  conditions 
imposed  by  the  statute.^  But  if  the  wrong  is  a  common  law 
tort,  the  lex  loci  delicti  is  looked  to  only  in  order  to  ascertain 
the  substantial  rights  of  the  parties.  The  mode  of  procedure, 
the  time  within  which  the  suit  is  to  be  brought,  etc,  are  re- 
garded as  relating  to  the  remedy  and  are  controlled  by  the  lex 
fori,  not  by  the  lex  loci  delicti. 

§  194.  Exceptions  to  Operation  of  Lez  Loci  Delicti.  —  The 
law  of  the  situs  of  a  tort  is  of  course  the  "proper  law"  to 
govern  the  liabilities  and  rights  arising  therefrom.  If  not 
liable  by  the  lex  loci  delicti,  the  general  rule  is  that  the  defend- 
ant will  not  be  liable  elsewhere.^  If  liable  by  that  law,  he  will 
usually  be  held  liable  wherever  the  question  arises  to  the  same 
extent  as  if  he  were  sued  in  the  locus  delicti  itself. 

But,  as  in  other  cases,  there  are  occasions  upon  which  the 
foreign  lex  loci  delicti  will  not  be  enforced  in  the  courts  of  the 
forum.  These  are  in  the  main  the  same  exceptional  cases  which 
apply  to  the  operation  of  any  proper  foreign  law.' 

As  applied  to  torts,  they  may  be  said  to  consist  of  (1)  Those 

445,  448  ;  Railroad  Co.  r.  Betta,  10  Colo.  431,  15  Pac.  821.     In  such  cases, 
however,  the  courts  sometimes  presume  the  foreign  law  to  be  identical  with 
the  lex  fori.     See  post,  §  214. 
8  Post,  §§  200-202. 

1  Carter  v.  Goode,  50  Ark.  155,  6  S.  "W.  719  ;  Le  Forest  v.  Tolman,  117 
Mass.  109.  But  see  Machado  v.  Fontes,  2  L.  R.  Q.  B.  D.  231,  in  which  it  is 
held  that  if  the  tort  is  not  justifiable  or  excusable  under  the  lex  loci  delicti, 
but  is  only  not  actionable  there,  an  action  may  be  brought  thereon  in  another 
State.  This  would  seem  to  be  an  instance  in  which  a  hard  case  made  bad  law. 
The  decision  is  in  direct  contradiction  of  all  the  principles  of  private  inter- 
national law  relating  to  torts,  and  if  followed  to  its  logical  conclusions  would 
overturn  all  the  rules  established  for  the  governance  of  such  cases.  The  same 
question  may  arise  in  actions  brought  in  one  State  for  death  resulting  from  a 
wrongful  act  in  another  State.  No  such  principle  has  been  lield  applicable  to 
them.     See  post,  §  200.    But  see  Stewart  v.  R.  R.  Co.,  168  U.  S.  445,  448. 

2  See  ante.  Chapter  IL 


480  EXCEPTIONS  TO  LEX  DELICTI.  §  194 

cases  where  the  ''proper  law"  is  in  direct  contravention  of  the 
law  or  policy  of  the  forum  ;  *  (2)  Where  the  remedy  prescribed 
for  the  tort  by  the  lex  loci  delicti  is  penal  in  character;  *  and 
(3)  Statutory  torts,  where  the  statute,  in  creating  the  liability, 
at  the  same  time  creates  a  mode  of  redress  peculiar  to  that 
State,  by  which  alone  the  wrong  is  to  be  remedied.^ 

It  should  be  especially  observed,  however,  that  these  excep- 
tional cases  differ  for  the  most  part  in  their  application  from 
those  heretofore  dealt  with  in  one  important  respect.  In  case 
of  exceptions  to  the  ''proper  law"  governing  other  matters, 
such  as  transfers  of  property  or  executory  contracts,  if  the 
"proper  law"  is  not  applied  the  lex  fori  is  substituted  there- 
for; some  law  is  applied  to  the  case.  In  the  case  of  torts,  if 
the  "proper  law"  is  not  applied,  the  case  usually  falls  to 
the  ground;    no  law  is  substituted  therefor.® 

8  Eemck  v.  R.  R.  Co.,  31  Minn.  11,  47  Am.  Rep.  771,  774 ;  St.  Louis, 
etc.  R.  R.  Co.  V.  McCormick,  71  Tex.  660,  9  S.  W.  540  ;  Taylor  v.  Pennsyl. 
vania  Co.,  78  Ky.  348,  39  Am.  Rep.  244  ;  Vawter  v.  R.  B.  Co.,  84  Mo.  679, 
54  Am.  Rep.  105;  North  Pacific  Lumber  Co.  v.  Lang,  28  Or.  246,  42  Pac.  799  ; 
Knight  V.  R.  R.  Co.,  108  Penn.  St.  250,  56  Am.  Rep.  200,  201 ;  Higgins  v. 
R.  R.  Co.,  155  Mass.  176,  29  N.  E.  534,  536  ;  Dennick  v.  R.  R.  Co.,  103  U.  S. 
11;  Evey  v.  R.  R.  Co.,  52  U.  S.  App.  118,  81  Fed.  294  ;  Law  v.  R.  R.  Co., 
91  Fed.  817  ;  Illinois,  etc.  R.  R.  Co.  v.  Ihlenberg,  21  C.  C.  A.  546,  75  Fed. 
873,  879-880. 

*  Dale  V.  R.  R.  Co.,  57  Kan.  601,  47  Pac.  521 ;  Adams  v.  R.  R.  Co.,  67 
Vt.  76,  30  Atl.  687 ;  Higgins  v.  R.  R.  Co.,  155  Mass.  176,  29  N.  E.  536  ; 
Hamilton  v.  R.  R.  Co.,  39  Kan.  56,  18  Pac.  57  ;  Herrick  v.  R.  R.  Co.,  31 
Minn.  11,  47  Am.  Rep.  771.  772  ;  O'Reilly  v.  R.  R.  Co.,  16  R.  I.  388,  19  Atl. 
245  ;  Lyman  v.  R.  R.  Co.,  70  Fed.  409  :  Evev  v.  R.  R.  Co.,  52  U.  S.  App.  118, 
81  Fed.  294.     See  Huntington  v.  Attrill,  146  U.  S.  657  ;  ante,  §  lo. 

•5  See  Stewart  v.  R.  R.  Co.,  168  U.  S.  447,  448  ;  North  Pacific  Lumber 
Co.  V.  Lang,  28  Or.  246,  42  Pac.  799 ;  Mex.  Nat.  R.  R.  Co.  v.  Jackson,  89 
Tex.  107,  33  S.  W.  857,  860.  This  is  in  reality  an  enforcement  of  the  lex  loci 
delicti  rather  than  an  exception  to  its  operation.  The  design  of  such  statutes 
is  to  give  a  remedy  only  in  the  locus  delicti.  For  instances  of  such  special 
vemedies  applied  to  contradtial  liabilities,  see  ante,  §  10. 

^  This  is  certainly  true  as  a  general  proposition.  Cases  may  be  conceived 
where  the  lex  delicti  is  so  imperfect  as  to  afford  no  remedy  for  even  a  most 
flagrant  wrong,  in  which  perhaps  the  courts  of  another  State  might  give  re- 
dress, especially  if  it  is  their  own  citizen  who  is  thus  injured.  But  even  this 
may  weU  be  doubted.     Carter  v.  Goode,  50  Ark.  155,  6  S.  W.  719  ;  W.  U, 


§  195  SITUS  OF  TORTS.  481 

§  195.  situs  of  Tort  or  Locus  Delicti. — It  is  not  always 
easy  to  ascertain  the  situs  of  a  tort,  the  locus  delicti,  which  is  to 
furnish  ''the  proper  law"  of  the  case.  If  the  whole  injury  is 
caused  by  one  single  act,  or  by  several  acts,  all  of  which  occur 
in  the  same  jurisdiction,  there  is  no  trouble  usually  in  locating 
the  tort,  as  having  its  situs  at  the  place  where  the  injury  occurs. 

But  if  the  tort  is  committed  upon  the  high  seas,  or  if  the 
cause  of  the  injury  arises  partly  in  one  State  and  partly  in  an- 
other, there  is  more  difficulty. 

In  case  of  torts  committed  on  board  of  merchant  vessels  on  the 
high  seas,  the  tort  must  be  regarded  as  committed  in  the  terri- 
tory of  the  State  or  country  to  which  the  vessel  belongs.  The 
"law  of  the  flag"  is  the  lex  loci  delicti.*  But  if,  when  the 
tort  is  perpetrated,  the  vessel  is  in  a  foreign  port  or  in  the  ter- 
ritorial waters  of  a  foreign  State,  it  is  generally  regarded  as  be- 
coming subject  to  the  foreign  law,  and  no  longer  as  itself  a  part 
of  the  territory  of  the  State  whose  flag  it  flies.  The  law  of  the 
foreign  port  would  in  such  cases  be  the  lex  loci  delicti.'' 

If  the  injury  complained  of,  though  committed  on  the  high 
seas,  does  not  occur  aboard  a  vessel  (to  which  the  principle  of 
exterritoriality  may  apply),  as  where  it  results  from  a  collision, 
between  two  ships  belonging  to  different  countries,  the  tort  not 
occurring  wholly  on  either  ship,  the  general  maritime  law,  as 
administered  in  the  forum,  must  govern.' 

Another  case  in  which  there  may  be  doubt  as  to  the  situs  of 
a  tort  arises  where  the  injury  is  the  result  of  a  series  of  acts, 
some  of  which  occur  in  one  State,  while  the  culmination  takes 
place  in  another. 

Tel.  Co.  V.  Phillips,  2  Tex.  Civ.  App,  608,  21  S.  W.  638.     See  Machado  v. 
Fontes,  2  L.  R.  Q.  B.  D.  231. 

1  Dicey,  Confl.  L.  663  ;  Whart.  Confl.  L.  §  473 ;  McDonald  v.  Mallory,  77 
N.  Y.  546,  33  Am.  Rep.  664;  Cavanagh  v.  Nav.  Co.,  13  N.  Y.  Supp.  540; 
Dupont  V.  Quebec  S.  S.  Co.  (Canada),  11  S.  C.  188.  A  fortiori  would  this  be 
true,  under  the  rules  of  public  international  law,  of  torts  committed  aboard 
public  vessels. 

2  Geoghegan  v.  Atlas  S.  S.  Co.,  22  N.  Y.  Supp.  749  ;  Robinson  v.  Nav.  Co, 
43  U.  S.  App.  191,  73  Fed.  883.  But  see  Dupont  v.  Quebec  S.  S.  Co.  (Canada), 
11  S.  C.  188. 

8  The  Brantford  City,  29  Fed.  373,  383;  The  Scotland,  105  U.  S.  24. 

31 


482  SITUS  OF  TORTS.  §  19S 

The  rule  in  such  cases  is  that  the  place  where  the  liability  of 
the  perpetrator  first  becomes  fixed  is  the  locus  delicti,  or  situs 
of  the  tort.* 

Thus,  if  the  cause  of  a  railway  accident  is  an  omission  or 
neglect  transpiring  in  one  State,  as  the  result  of  which  the 
accident  and  consequent  injury  occur  in  another,  the  seat  of  the 
tort  is  the  place  where  the  accident  and  injury  occur  which 
fasten  the  liability  (if  any  there  be)  upon  the  defendant,  not  the 
place  where  the  negligence  or  omission  transpired,  which  of 
itself  would  fix  no  liability  upon  the  defendant,  save  for  the 
subsequent  injury  resulting  therefrom.  The  negligence  or 
omission  is  not  in  itself  actionable,  unless  and  until  it  is  fol- 
lowed by  resulting  injury.^ 

If  the  accident  and  accompanying  injury  take  place  in  one 
State,  while  death  results  from  the  injury  in  another,  and  suit 
is  instituted  to  recover  damages  for  the  death,  the  situs  of  the 
tort  will  depend  upon  the  question  whether  the  tort  complained 
of  is  the  injury  or  the  resulting  death.  Where  the  laws  of  the 
two  States  differ,  this  may  become  of  importance.  Following 
the  general  rule  already  laid  down,  since  an  independent  lia- 
bility is  fastened  upon  the  defendant  by  reason  of  the  injury, 
such  guilt  as  there  is  attaching  to  him  at  that  time,  the  place 

*  Alabama,  etc.  R.  R.  Co.  v.  Carroll,  97  Ala.  126,  11  So.  803,  806  ;  Rail- 
road  Co.  v.  Doyle,  60  Miss.  977;  Louisville  &  N.  R.  R.  Co.  v.  Williams,  113 
Ala.  402,  21  So.  938,  939  ;  Rudiger  v.  R.  R.  Co.,  94  Wis.  191,  68  N.  W.  661 ; 
McCarthy  v.  R.  R.  Co.,  18  Kan.  46,  26  Am.  Rep.  742 ;  De  Ham  v.  R.  R.  Co., 
86  Tex.  68,  23  S.  W.  381  ;  Needham  v.  R.  R.  Co.,  38  Vt.  294. 

5  Alabama,  etc.  R.  R.  Co.  v.  Carroll,  97  Ala.  126,  11  So.  803,  806  ;  Rail- 
road Co.  V.  Doyle,  60  Miss.  977.  But  see  Cin.,  H.  &  D.  R.  R.  Co.  v.  McMul- 
len,  117  Ind.  439,  20  N.  E.  287  ;  Louisville  &  N.  R.  R.  Co.  v.  Williams,  113 
Ala.  402,  21  So.  938.  In  the  last  case,  the  negligence  occurred  in  Tennessee, 
and  death  resulted  therefrom  in  Alabama.  It  was  held  that  the  law  of  Ten- 
nessee should  determine  the  defendant's  responsibility.  But  it  does  not  clearly 
appear  from  the  opinion  whether  the  accident  and  injury  occurred  in  Ten- 
nessee or  in  Alabama.  Upon  this  point  the  correctness  of  the  decision  de- 
pends. 

For  analogous  principles  with  respect  to  crimes,  see  post,  §  204  ;  Alabanaa, 
etc.  R.  R.  Co.  V.  Carroll,  supra;  Simpson  ».  State,  92  Ga.  41,  44  Am.  St.  Rep. 
V5,  and  note. 


§  195  SITUS  OF  TORTS.  488 

of  the  injury  is  the  true  locus  delicti.  The  death  may  increase 
the  liability,  but  it  does  not  create  it.' 

An  injury  resulting  from  the  act  of  a  living  agency  will  be 
referred  to  the  place  where  the  act  is  done.  This  principle 
applies  not  only  to  the  tortious  acts  of  an  agent,  for  which  it 
is  sought  to  hold  the  principal  responsible  in  another  State,' 
but  to  cases  where  the  defendant  is  the  owner  of  an  animal 
which  strays  into  another  State  and  there  does  an  injury  for 
which  the  owner  is  held  responsible.  The  place  of  the  injury  is 
the  locus  delicti. 

Thus,  in  Le  Forest  v.  Tolman,'  a  Massachusetts  statute  pro- 
vided that  ''every  owner  or  keeper  of  a  dog  shall  forfeit  to  any 
person  injured  by  it  double  the  amount  of  the  damage  sustained 
by  him,  to  be  recovered  in  an  action  of  tort "  (without  regard 
to  the  scienter) .  The  defendant  lived  in  Massachusetts  and  the 
plaintiff  in  New  Hampshire.  The  defendant's  dog  strayed  over 
into  New  Hampshire  and  bit  the  plaintiff,  who  thereupon  sued 
the  defendant  in  Massachusetts.  There  was  no  evidence  of  any 
New  Hampshire  statute  on  the  subject,  and  by  the  common  law 
presumed  to  be  in  force  in  New  Hampshire  the  scienter  was  an 
essential  element  of  the  cause  of  action.  No  scienter  was  shown. 
The  court  held  that  the  action  could  not  be  maintained  in  Mas- 
sachusetts, since  the  New  Hampshire  law  must  control. 

It  is  to  be  observed  furthermore  with  respect  to  the  situs  of 
torts,  that  every  crime  against  an  individual  is  also  a  tort.  In 
such  cases,  if  a  private  action  is  brought  upon  the  tort,  its  situs 
is  the  situs  of  the  crime,  which  will  be  discussed  in  a  subsequent 
section.' 

The  situs  of  torts  to  real  property  will  of  course  be  the  situs 
of  the  land  against  which  the  tort  is  committed.     Nor  can  any 

9  Rudiger  v.  R.  R.  Co.,  94  Wis.  191,  68  N.  W.  661  ;  Needham  v.  R.  R. 
Co.,  38  Vt.  294;  McCarthy  v.  B,  R.  Co.,  18  Kan.  46,  26  Am.  Rep.  742; 
De  Ham  v.  R.  R.  Co.,  86  Tex.  68,  23  S.  W.  381.  Perhaps  also  Louisville 
&  N.  R.  R.  Co.  V.  Williams,  113  Ala.  402,  21  So.  938,  may  be  referred  to  thif 
principle.    The  facts  of  that  case  are  not  clearly  stated. 

'  As  in  case  of  railway  accidents  like  those  above  mentioned. 

8  117  Mass.  109. 

»  Post,  S  204. 


484  LEX   DELiOTI  GOVERNS   TORTS.  §  190 

serious  doubt  arise  that  the  situs  of  torts  to  personal  property  la 
the  actual  situs  of  the  property,  not  its  legal  situs  at  the  domicil 
of  the  owner,  unless  that  is  also  its  actual  situs.^"  But  so  far 
as  the  liability  of  the  defendant  for  the  conversion  of  goods  de- 
pends upon  matter  of  title,  etc.,  the  "proper  law"  regulating 
the  title  or  other  ground  of  defense  is  to  be  looked  to,  which 
may  or  may  not  be  the  lex  loci  delicti. ^^ 

§  196.  Law  governing  Torts  in  General.  —  It  is  a  general 
rule  subject  to  but  few  exceptions  that  the  lex  loci  delicti  gov- 
erns the  right  of  an  injured  party  to  sue  for  a  tort,  the  liability 
of  the  perpetrator,  and  the  defenses  he  may  plead.  The  modern 
tendency,  as  we  have  seen,  is  in  favor  of  regarding  actions  for 
torts  as  of  a  transitory  nature,  not  confined  to  the  place  where 
the  tort  occurs.  These  principles  give  birth  to  another  well 
worthy  of  notice ;  namely,  a  tendency  to  support  an  action  for  a 
foreign  tort,  if  actionable  by  the  law  of  the  State  where  it  is 
committed,  and  subject  to  that  law,  regardless  of  the  law  of  the 
forum;  the  only  proviso  being  that  it  is  not  expressly  contrary 
to  the  law  or  to  some  very  pronounced  policy  of  the  forum.  The 
courts  are  inclined  to  be  very  liberal  in  sustaining  such  actions. 

The  tendency  of  the  recent  decisions  is  especially  observable 
in  respect  to  the  liberality  shown  in  refusing  to  set  aside  the 
operation  of  a  proper  foreign  law  because  of  mere  dissimilarities 

10  Carson  v.  Smith,  133  Mo.  606,  34  S.  W.  855  ;  Southern  Pac.  Co.  v. 
Graham,  12  Tex.  Civ.  App.  565,  34  S.  W.  135.  In  Hoffman  v.  Carow,  22 
Wend.  (N.  Y.)  285,  an  action  was  brought  in  New  York  by  a  plaintiff  resident 
there  against  certain  auctioneers,  citizens  of  Maryland.  The  action  was  trover 
for  certain  goods  stolen  from  the  plaintiff,  and  put  in  the  defendants'  hands 
by  the  thief  for  sale,  they  being  ignorant  of  the  felony.  It  was  held  that  the 
law  of  the  legal  situs  of  the  goods  (the  owner's  domicil)  should  determine  the 
liability  of  the  defendants  for  the  conversion  of  the  goods,  not  the  law  of 
Maryland,  where  the  conversion  occurred.  It  is  submitted  that  the  court  here 
confused  two  distinct  principles.  It  is  generally  true  that  the  situs  of  chattels, 
for  the  purpose  of  transfers  or  dealings  with  them  by  the  owner,  is  the  situs  of 
the  owner.  But  so  far  as  the  dealings  of  third  persons  therewith  are  con- 
cerned, as  where  they  steal  the  chattels  situated  abroad  or  convert  them  to 
their  own  use,  the  actual  situs  of  the  chattels  is  the  locus  delicti,  and  fur- 
nishes the  "  proper  law ''  to  govern  both  the  crime  and  the  tort. 

u  See  Martin  v.  HiU,  12  Barb.  (N.  Y.)  631  ;  Edgerly  o.  Bush-  81  N.  V. 
199. 


§  197  DEFENSES   TO  ACTIONS  FOB  TORT.  486 

to  the  law  of  the  forum.  Thus,  it  was  formerly  laid  down  as  a 
rule  in  these  cases  that,  in  order  for  the  courts  to  enforce  a  for- 
eign lex  delicti,  the  tort  must  not  only  be  actionable  in  both 
States,  but  the  laws  of  both  States  must  be  substantially  similar^ 
if  not  identical.^  The  presumption  was  rather  against  the  right 
to  recover  for  a  foreign  tort  than  in  favor  of  it.  At  present, 
however,  the  reverse  of  this  is  true,  the  courts  favoring  the  right 
to  recover  in  such  cases,  unless  the  right  is  vetoed  by  the  lex 
fori.  It  may  even  be  doubted  whether  it  is  necessary  that  the 
lex  fori  should  make  the  tort  actionable  at  all,  provided  its 
policy  does  not  emphatically  prohibit  a  recovery.*  However 
this  may  be,  it  is  quite  certain  that  it  is  no  longer  requisite 
that  the  laws  of  the  two  States  should  be  substantially  similar. 
If  the  lex  delicti  is  not  opposed  to  the  settled  policy  of  the 
forum,  it  will  be  enforced  there,  provided  the  court  has  juris- 
diction of  the  defendant.' 

Thus  in  a  recent  Canadian  case,*  the  action  was  for  false  im- 
prisonment against  a  foreign  customs  officer.  He  had  arrested 
the  plaintiff  without  a  warrant,  under  a  law  of  his  own  country 
authorizing  such  arrests  in  case  of  persons  suspected  of  violating 
its  customs  laws.  The  point  was  made  that  this  foreign  law 
(lex  loci  delicti)  was  contrary  to  Canadian  notions  of  justice  and 
propriety  and  contrary  to  its  policy,  but  the  court  ruled  that  it 
was  not  so  manifestly  unjust  as  to  be  rejected  as  a  defense  to  the 
action. 

§  197.  Defenses  to  Actions  for  Tort. — Not  only  does  the 
lex  loci  delicti  control  the  plaintiff's  right  to  sue  and  the  grounds 

1  See  Herrick  v.  R.  R.  Co.,  31  Minn.  11,  47  Am.  Rep.  771 ;  Leonard  ». 
Nav.  Co.,  84  N.  Y.  48,  38  Am.  Rep.  491  ;  St.  Louis,  etc.  R.  R.  Co.  v.  McCor- 
mick,  71  Tex.  660,  9  S.  W.  540  ;  Hamilton  v.  R.  R.  Co.,  39  Kan.  687,  18  Pac. 
57,  60  ;  Cin.,  H.  &  D.  R.  R.  Co.  v.  McMuUen,  117  Ind.  439,  20  N.  E.  287; 
O'Reilly  v.  R.  R.  Co.,  16  R.  L  388,  19  Atl.  245  ;  Mon-is  v.  R.  R.  Co.,  65  la. 
727,  23  N.  W.  143. 

2  See  Herrick  v.  R.  R.  Co.,  31  Minn.  11,  47  Am.  Rep.  771  ;  Nelson  v. 
R.  R.  Co.,  88  Va.  971,  14  S.  E.  839. 

8  Herrick  v.  R.  R.  Co.,  31  Minn.  11,  47  Am.  Rep.  771 ;  Evey  t.  R.  R.  Co., 
62  U.  S.  App.  118,  81  Fed.  294,  38  L.  R.  A.  387;  Huntington  v.  Attrill,  14< 
U.  S,  670;  Law  v.  R.  R.  Co.,  91  Fed.  817. 

«  May  V.  Smith,  32  N.  B.  474. 


486  DEFENSES  TO  ACTIONS  FOR   TORT.  §  19T 

of  his  complaint,  but  the  same  law  usually  governs  the  defenses 
which  may  be  made  by  the  defendant.  It  should  be  noticed  that 
the  courts  are  more  chary  of  applying  exceptions  to  the  complete 
operation  of  a  foreign  lex  delicti  when  it  is  the  ground  of  the 
defendant's  defense  than  when  it  is  the  ground  of  the  plaintiff's 
complaint.  Few  cases  are  found  in  which  the  defense  of  the 
alleged  wrongdoer,  based  on  the  lex  delicti,  has  been  swept 
away  by  the  courts  in  the  maintenance  of  the  supposed  policy  of 
the  forum,  though  perhaps  in  extreme  cases  such  a  step  might 
be  justifiable.^ 

Thus,  the  effect  of  the  absence  of  proof  of  the  scienter,  as  a 
defense  to  an  action  against  the  owner  of  a  dog,  which  has  strayed 
into  another  State  and  there  bitten  the  plaintiff,  is  to  be  deter- 
mined by  the  lex  delicti.^  And  so  is  the  effect  of  an  act  of  am- 
nesty or  oblivion  upon  acts  done  in  time  of  rebellion.' 

So  also  the  effect  of  contributory  negligence  as  a  defense  to 
an  action  ex  delicto  will  be  controlled  by  the  same  law.  Thus, 
whether  the  doctrine  of  "comparative  negligence"  applies  to 
the  case  depends  upon  the  lex  delicti.*  So,  if  the  lex  delicti 
provides  that  contributory  negligence  shall  go  merely  in  mitiga- 
tion of  damages,  that  law  will  govern,  though  by  the  lex  fori 
contributory  negligence  defeats  the  action  altogether.*  And  if 
the  lex  delicti  fixes  an  age  or  conclusively  presumes  an  age  at 
which  an  infant's  contributory  negligence  will  excuse  a  wrong- 
doer, that  law  gives  the  rule  for  decision.' 

But  if  the  rule  prescribed  by  the  lex  delicti  with  respect  to 
the  defendant's  negligence  is  a  mere  rule  of  evidence,  such  as 
rules  respecting  the  burden  of  proof  touching  negligence,  the 
lex  fori  will  govern,  not  the  lex  delicti,  in  accordance  with  the 
general  principle  that  rules  of  evidence  relate  to  the  remedy,  and 

1  See  May  v.  Smith,  32  N.  B.  474 ;  Machado  r.  Pontes,  2  L.  R.  Q.  B.  D. 
231. 

*  Le  Forest  v.  Tolman,  117  Mass.  109. 

•  Phillips  V.  Eyre,  L.  R.  6  Q.  B.  29. 

*  See  Helton  v.  R.  R.  Co.,  97  Ala.  275,  12  So.  27«,  285  ;  East  Tenn.,  eto 
B.  R.  Co.  V.  Lewis,  89  Tenn.  235,  14  S.  W.  603. 

»  Louisville  &  N.  R.  R.  Co.  v.  Whitlow  (Ky.),  43  S.  W.  711.    ' 

•  Bridger  v.  R.  R.  Co.,  27  S.  C.  462,  3  S.  E.  860. 


§  197  DEFENSES  TO   ACTIONS  FOR  TORT.  487 

like  all  matters  of  that  character  are  regulated  by  the  law  of  the 
situs  of  the  remedy  (lex  fori).'' 

In  like  manner,  the  scope  and  effect  of  the  doctrine  of  ''as- 
sumption of  risk,"  upon  entering  into  a  dangerous  employ- 
ment are  to  be  determined  in  accordance  with  the  lex  loci 
delicti.® 

The  same  law  governs  in  ascertaining  the  liability  of  an  em- 
ployer to  a  servant  injured  by  the  negligence  of  a  fellow-servant.' 
The  question  has  been  made  in  these  latter  cases,  whether  the 
liability  or  non-liability  is  not  rather  contractual  than  tortious. 
This  is  of  importance  in  those  cases  where  the  contract  of  em- 
ployment is  made  in  one  State,  while  the  injury  occurs  in  an- 
other subject  to  a  different  rule  touching  the  employer's  liability 
for  such  injuries.  It  is  believed  however  that  the  liability  in 
such  cases  is  tortious,  not  contractual,  and  is  therefore  controlled 
by  the  lex  delicti.  ^'^ 

So  also  where  the  nature  and  extent  of  the  liability  for  a 
tort  depends  upon  the  nature  of  the  perpetrator's  occupation,  as 
whether  he  is  to  be  subjected  to  the  liabilities  of  a  common 
carrier,  this  question  will  depend  upon  the  lex  delicti.  Hence 
in  an  action  brought  in  Mississippi  against  the  Pullman  Car 
Company  of  Illinois  for  an  outrageous  assault  perpetrated  in 
Illinois  upon  a  passenger  by  a  porter  in  the  employ  of  the  com- 
pany, the  question  whether  the  company  was  a  common  carrier 
(and  as  such  bound  to  protect  its  passengers  against  the  acts  of 
its  servants  even  when  beyond  the  scope  of  their  employment) 

7  Helton  V.  R.  R.  Co.,  97  Ala.  275,  12  So.  276,  285.  See  Van  Raden  w. 
R.  R.  Co.,  56  Hun  (N.  Y.),  96,  8  N.  Y.  Supp.  914. 

8  Railroad  Co.  v.  Ihlenberg,  75  Fed.  879-880  ;  Northern  Pac.  R.  R.  Co. 
V.  Babcock,  154  U.  S.  190. 

9  Alabama,  etc.  R.  E.  Co.  v.  CarroU,  97  Ala.  126,  11  So.  803,  807  ;  Kahl 
V.  R.  R.  Co.,  95  Ala.  337,  10  So.  661,  662 ;  Alexander  v.  Pennsylvania  Co., 
48  Ohio  St.  623,  30  N.  E.  69,  70,  71 ;  Belt  v.  R.  R.  Co.,  4  Tex.  Civ.  App.  231, 
22  So.  1062,  1064  ;  Njus  v.  R.  R.  Co.,  47  Minn.  92,  49  N.  W.  527  ;  Herrick 
V.  R.  R.  Co.,  31  Minn.  11,  47  Am.  Rep.  771. 

10  Alabama,  etc.  R.  R.  Co.  v.  Carroll,  97  Ala.  126,  11  So.  803,  807 ;  Belt  v. 
R.  R.  Co.,  4  Tex.  Civ.  App.  231,  22  S.  W.  1062,  1064  ;  Herrick  v.  R.  R.  Co., 
31  Minn.  11,  47  Am.  Rep.  771.  But  see  Alexander  v.  Pennsylvania  Co,  iS 
Ohio  St.  623,  30  N.  E.  69,  70. 


488  DAMAGES  FOR   TORT.  §  198 

was  determined  in  the  affirmative,  in  accordance  with  the  law 
of  Illinois  (lex  delicti).^^ 

§  198.  Damages  —  Compensatory,  Punitive,  and  Penal.  — > 
With  regard  to  the  law  governing  damages  to  be  given  in 
an  action  ex  delicto,  the  distinction  between  common  law  and 
statutory  torts  becomes  of  importance.  The  measure  of  dam- 
ages in  the  case  of  statutory  torts,  as  will  presently  appear,* 
will  be  governed  in  general  by  the  lex  delicti,  at  least  in  those 
cases  where  the  measure  of  damages  is  fixed  by  the  very  statute 
which  creates  the  tortious  liability. 

The  law  controlling  the  measure  of  damages  in  actions  ex 
delicto  may  depend  in  some  degree  upon  whether  the  damages 
demanded  are  merely  compensatory,  or  are  punitive  or  vindic- 
tive, or  are  by  way  of  statutory  penalty. 

If  the  damages  demanded  are  compensatory  merely,  and  the 
laws  of  both  States  authorize  compensation  (and  no  more),  little 
question  will  generally  arise  as  to  the  "  proper  law  "  governing 
the  measure  of  damages.  But  occasionally  some  point  may  arise 
upon  differences  between  the  lex  delicti  and  the  lex  fori  as  to 
the  elements  to  be  taken  into  consideration  in  estimating  the 
amount  of  damage.  Such  matters  pertain  to  the  remedy,  and 
are  to  be  controlled  by  the  lex  fori,  since  they  do  not  involve 
any  substantive  right.  Thus,  if  the  lex  loci  delicti  allows  the 
social  position  of  the  plaintiff  to  be  considered  in  assessing 
the  damage  resulting  from  a  tort,  while  the  lex  fori  does  not, 
the  latter  law  will  control.' 

So,  the  question  whether,  in  trover  for  the  value  of  goods,  in- 
terest on  the  value  thereof  from  the  time  of  the  conversion  shall 
be  included  in  the  damages  is  to  be  determined  by  the  lex  fori.' 

But  if  damages  are  given  by  the  law  of  either  State,  which 

"  Pullman  Car  Co.  v,  Lawrence  (Miss.),  22  So.  53,  57. 

*  See  cases  cited  infra^  note  4  ;  post,  §§  200,  202. 

2  Evey  V.  Mex.  Nat.  H.  R.  Co.,  56  IT.  S.  App.  118,  81  Fed.  294,  38  L.  R. 
A.  387;  Mex.  Nat.  R.  R.  Co.  v.  Jackson,  89  Tex.  107,  33  S.  W.  861,  31 
L.  R.  A.  276. 

8  Carson  v.  Smith,  133  Mo.  606,  34  S.  "W.  855,  858.  But  in  case  of  statu- 
tory torts,  if  interest  is  included  in  the  damages  under  the  statute  of  the  locua 
delicti,  the  lex  delicti  will  prevail.     Kiefer  ».  R.  R.  Co.,  42  N.  Y.  Supp.  171. 


§  198  DAMAGES  FOB  TOBT.  489 

are  not  merely,  or  not  fully,  compensatory  for  the  tort  complained 
of,  the  general  rule  is  that  the  measure  of  damages  becomes  a 
matter  of  substantive  right,  to  be  controlled  by  the  lex  delicti 
unless  the  damages  are  penal.  The  plaintiff  should  have  the 
same  substantial  relief  in  the  forum  that  he  would  be  entitled 
to  if  he  had  sued  in  the  locus  delicti,  provided  the  enforce- 
ment of  the  lex  delicti  would  not  contravene  the  policy  of  the 
forum.* 

With  respect  to  punitive  damages  also,  if  the  case  is  one  for 
which  such  damages  may  be  given  in  the  discretion  of  the  jury 
under  the  lex  delicti,  that  law  will  govern  the  legal  right  to 
demand  such  damages  in  another  State,  unless  the  lex  fori 
should  expressly  prohibit  punitive  damages,  or  the  enforcement 
of  the  lex  delicti  in  this  respect  would  contravene  an  established 
policy  of  the  forum.  This  is  a  substantive  right,  not  a  mere 
matter  of  remedy.* 

In  some  cases  the  statutes  of  the  locus  delicti  provide  for  a 
named  sum  to  be  given  by  way  of  damages,  regardless  of  exten- 
uating circumstances  in  case  the  cause  of  action  described  in 
the  statute  arises,  and  sometimes  regardless  of  the  actual  dam- 
age done.  Such  statutes  are  to  be  distinguished  from  those 
which  merely  impose  an  outside  limit  upon  the  amount  of  dam- 
ages recoverable.  The  latter  are  remedial  statutes,  the  former 
more  or  less  penal,  since  they  are  to  operate  without  regard  to 
circumstances  of  extenuation  and  do  not  give  merely  the  actual 
damages  sustained.  Such  statutes  have  generally  been  refused 
enforcement  in  other  States,  upon  the  ground  that  they  are 
penal.'    And  so  it   is,  also,  where  the  statutes   of  the   locus 

*  Mex.  Nat.  R.  R.  Co.  v.  Jackson,  89  Tex.  107,  33  S.  W.  857,  31  L.  R.  A. 
276 ;  Pullman  Palace  Car  Co.  v.  Lawrence  (Miss.),  22  So.  53,  57;  Hanna  v. 
R.  R.  Co.,  41  111.  App.  116  ;  Kiefer  v.  R.  R.  Co.,  42  N.  Y.  Supp..  171.  See 
Dyke  v.  R.  R.  Co.,  45  N.  Y.  113,  6  Am.  Rep.  43  ;  Wooden  v.  R.  R.  Co.,  126 
N.  Y.  10,  26  Atl.  1050. 

6  See  Pullman  Palace  Car  Co.  v.  Lawrence  (Miss.),  22  So.  53,  67.  But 
Bee  Carson  v.  Smith,  133  Mo.  606,  34  S.  W.  855,  858,  where  the  plaintiflfs 
right  to  punitive  damages  is  discussed  without  reference  to  the  lex  delicti. 

«  O'Reilly  v.  R.  R.  Co.,  16  R.  I.  388,  17  Atl.  906;  Dale  v.  R.  R.  Co.,  57 
Kan,  601,  47  Pac.  521 ;  Adams  v.  R.  R.  Co.,  67  Vt.  76,  30  Atl.  687;  Lyman 
».  R.  R.  Co.,  70  Fed.  40». 


490  V        STATUTORY   TORTS.  §  lyjj 

delicti  provide  that,  under  particular  circumstances  of  tort, 
double  or  treble  damages  shall  be  awarded.'' 

§  199.  Statutory  Torts  —  Death  by  Wrongfiil  Act  —  Statu- 
tory torts  are  either  acts  of  an  injurious  tendency,  which  (al- 
though compensation  may  not  be  demandable  therefor  upon  the 
universal  principles  that  inhere  in  the  common  law)  are  made 
tortious  by  statute ;  or  are  torts  which,  not  being  actionable  at 
common  law  for  some  technical  reason,  are  made  so  by  statute.^ 

In  cases  of  statutory  torts  there  should  be  no  presumption 
that  the  laws  of  two  States  are  similar.  One  may  have  re- 
tained the  common  law,  while  the  other  has  altered  the  com- 
mon law  rule  within  its  limits  by  statute.  Hence  the  fact  that 
acts  of  this  character  are  made  actionable  by  statute  in  the 
State  where  the  action  is  brought  affords  no  ground  to  presume 
that  the  same  act  is  also  actionable  in  the  locus  delicti.*  In- 
deed, if  the  lex  delicti  is  founded  upon  the  common  law  system 
of  jurisprudence,  the  very  opposite  presumption  is  indulged, 
in  the  absence  of  proof  to  the  contrary,  namely,  that  the  com- 
mon law  remains  in  force  in  the  locus  delicti,  unchanged  by 
statute.' 

The  principal  instance  of  a  statutory  tort  is  that  afforded  by 
the  enactment  in  most  of  the  States  of  acts  based  upon  the  Eng- 

»  Bettys  V.  R.  R.  Co.,  37  Wis.  323  ;  Herrick  v.  R.  R.  Co.,  31  Minn.  11,  47 
Am.  Rep.  774-775 ;  Langdon  v.  R.  R.  Co.,  58  Hun  (N.  Y),  122,  11  N.  Y. 
Supp.  514.  It  is  possible  however  that  such  statutes,  instead  of  being  regarded 
as  penal  and  unenforceable  exterritorially,  should  be  looked  upon  as  merely 
creating  a  statutory  case  for  punitive  damages,  and  should  therefore  be  re- 
ferred to  the  preceding  paragraph.  See  Huntington  v.  Attrill,  146  U.  S.  657  ; 
Evey  V.  R.  R.  Co.,  52  U.  S.  App.  118,  81  Fed.  294,  302;  Hamilton  v.  R.  R. 
Co.,  39  Kan.  687,  18  Pac.  57.  See  ante,  §  10.  But  this  construction  is 
hardly  probable,  since  in  ordinary  cases  of  punitive  damages  all  the  law  does 
is  to  permit  the  jury  to  consider  whether  upon  the  evidence  additional  dam- 
ages should  be  awarded  in  the  particular  case,  whereas  under  statutes  of  this 
character  no  discretion  whatever  is  left  in  the  jury.  Confiscations  of  this  sort 
are  contrary  to  the  policy  of  most  States,  and  would  hardly  be  enforced  else- 
where than  in  the  State  which  enacts  the  law.  But  see  Huntington  v.  Attrill, 
supra. 

1  Ante,  §  193. 

2  Leonard  v.  Nav.  Co.,  84  N.  Y.  48,  38  Am.  Rep.  491. 

«  Debevoise  v.  R.  R.  Co.,  98  N.  Y.  377.    See  post,  §  214. 


§  200       TORTIOUS   DEATH  —  MODERN  TENDENCY.  491 

lish  statute,  known  as  ''Lord  Campbell's  Act,"  whereby  in- 
juries resulting  in  death  are  made  actionable.  At  common  law 
the  maxim,  ** personal  actions  die  with  the  person,"  applied 
to  such  cases.  These  statutes  vary  greatly  in  detail,  but  the 
general  policy  of  most  of  them  is  the  same.  That  policy  is  not 
simply  to  permit  the  right  of  action  to  survive  for  the  benefit 
of  the  dead  man's  estate,  but  to  give  the  benefit  of  the  dam- 
ages obtained  to  his  family,  free  from  the  claims  of  creditors ; 
or  in  other  words,  to  create  a  new  cause  of  action,  rather  than 
merely  to  allow  the  old  one  to  survive.  Some  of  these  acts 
name  the  personal  representative  of  the  deceased  as  the  proper 
party  to  sue  in  this  behalf,  but  the  proceeds  to  go  to  his  family 
or  those  named  by  the  statute ;  others  provide  that  the  suit  shall 
be  brought  directly  by  the  beneficiaries  named  in  the  statute ; 
others,  that  the  suit  shall  be  in  the  name  of  the  State.  Some 
of  the  statutes  specify  that  only  a  limited  amount  may  be  re- 
covered by  way  of  damages  ;  others  designate  no  limit.  Some 
provide  that  the  suit  shall  be  brought  within  one  year,  others 
within  two  or  more  years,  from  the  time  of  death.  Some  limit 
the  damages  to  a  certain  amount,  others  to  another,  others  not 
at  all.  Many  of  these  acts  prescribe  other  conditions  and  regu- 
lations also,  but  those  mentioned  suffice  to  illustrate  the  vari- 
ances and  discrepancies  existing  between  them,  and  which  have 
proved  a  fruitful  source  of  conflicts  of  laws. 

§  200.  Death  by  Wrongful  Act  —  Increasing  Liberality  of 
the  Courts.  —  In  the  cases  on  this  subject  two  main  questions 
were  first  presented.  If  a  tortious  death  is  actionable  by  the 
lex  fori  only,  will  that  statute  govern  ?  If  actionable  by  the 
lex  delicti,  will  that  statute  control  ? 

The  first  question  was  at  once  decided  in  the  negative,  and 
the  correctness  of  the  ruling  cannot  be  questioned.^ 

It  is  with  regard  to  the  second  question  that  the  greatest  con- 
flict of  opinion  has  occurred.  The  view  first  advanced  was  that 
although  the  lex  delicti  made  the  tortious  death  actionable,  it 
would  be  of  no  avail  upon  an  action  brought  in  another  State, 

1  Crowley  r.  R.  R.  Co.,  30  Barb.  (N.  Y.)  99 ;  Beach  v.  R.  R.  Co.,  30  Barb. 
433  ;  Whitford  v.  Panama  R.  R.  Co.,  23  N.  Y.  468  ;  O'Reilly  v.  R.  R.  Co..  1« 
R.  I.  388,  17  Atl.  906.     See  Debevoise  t>.  R.  R.  Co..  98  N.  Y.  377. 


492  TORTIOUS   DEATH  —  MODERN  TENDENCY.        §  200 

even  though  the  death  was  made  actionable  by  the  lex  fori  also, 
because  such  statutes  were  to  be  regarded  a&  penal,  or  at  least  as 
having  no  exterritorial  force.* 

As  more  liberal  ideas  advanced,  the  next  step  taken  by  the 
courts  was  to  recognize  these  statutes  as  remedial,  not  penal, 
and  to  permit  actions  to  be  brought  in  one  State  for  a  tortious 
death  resulting  in  another  State  and  actionable  there,  provided 
there  was  a  statute  substantially  similar  in  the  State  of  the 
forum.'  But  if  there  were  any  very  marked  dissimilarities  be- 
tween the  statutes  of  the  two  States,  this  was  still  taken  to  in- 
dicate that  the  enforcement  of  the  lex  delicti  was  contrary  to 
the  policy  of  the  forum,  and  the  right  to  sue  there  would  be 
denied.* 

The  present  tendency  of  the  more  recent  decisions  is  to  ad- 
vance still  further  towards  liberality  and  to  throw  open  the 
courts  to  litigants  whose  cause  of  action  has  arisen  in  other 
States  and  under  the  laws  thereof,  even  though  not  actionable 
at  common  law  or  not  actionable  if  it  had  arisen  in  the  forum, 
provided  the  enforcement  of  the  lex  delicti  would  not  seriously 
contravene  the  established  policy  of  the  forum.  The  presump- 
tion is  in  favor  of  the  right  to  sue,  and  the  burden  rests  upon 
the  party  objecting  to  show  that  the  enforcement  of  the  "  proper 
law  "  would  be  inconsistent  with  the  domestic  policy.^ 

2  Richardson  v.  R.  R.  Co.,  98  Mass.  85  ;  McCarthy  v.  R.  R.  Co.,  18  Kan.  46  ; 
Woodard  v.  R.  R.  Co.,  10  Ohio  St.  121 ;  Anderson  v.  R.  R.  Co.,  37  Wis.  321 ; 
Hamilton  v.  R.  R.  Co.,  39  Kan.  687,  18  Pac.  57.  This  doctrine  is  indefensible, 
and  has  long  since  been  discarded. 

8  Leonard  v.  Nav.  Co.,  84  N.  Y.  48,  38  Am.  Rep.  491  ;  Wooden  v.  R.  R. 
Co.,  126  N.  Y.  10,  15 ;  St.  Louis,  etc.  R.  R.  Co.  v.  McCormick,  71  Tex.  660, 
9  S.  W.  540  ;  Hamilton  v.  R.  R.  Co.,  39  Kan.  687,  18  Pac.  57,  60  ;  Cin.  H.  &  D. 
R.  R.  Co.r  McMullen,  117  Ind.  439,  20  N.  E.  287;  Burns  v.  R.  R.  Co.,  113 
Ind.  169,  15  N.  E.  230  ;  O'Reilly  v.  R.  R.  Co.,  16  R.  I.  388,  19  Atl.  245 ; 
Morris  v.  R.  R.  Co.,  65  la.  727,  23  N.  W.  143. 

*  St.  Louis,  etc.  R.  R.  Co.  v.  McCormick,  71  Tex.  660,  9  S.  W.  540 ;  Belt 
V.  R.  R.  Co  ,  4  Tex.  Civ.  App.  231,  22  S.  W.  1062, 1063 ;  Ash  v.  R.  R.  Co.,  72 
Md.  144,  19  Atl.  643  ;  Hamilton  v.  R.  R.  Co.,  39  Kan.  687,  18  Pac.  57,  60  ; 
Vawter  v.  R.  R.  Co.,  84  Mo.  679,  54  Am.  Rep.  105 ;  Taylor  v.  Pennsylvania 
Co.,  78  Ky.  348,  39  Am.  Rep.  244. 

6  Stewart  v.  R.  R.  Co.,  168  U.  S.  445;  Texas,  etc.  R.  R.  Co.  v.  Cox,  145 
n.  S.  593;  Huntington  v.  Attrill,  146  U.  S.  657,  670  ;  Dennick  v.  R.  R-  Co, 


§  201       SUITS  FOR  DEATH  —  PBOPEB   PLAINTIFF.  498 

But  even  under  this  modern  doctrine  the  right  of  the  plain- 
tiff to  sue  and  the  liability  of  the  defendant  depend  in  all  8ub« 
stantial  matters  upon  the  lex  loci  delicti,  not  upon  general 
principles  of  law  and  justice  as  administered  in  the  forum.' 
Hence,  both  with  respect  to  the  party  who  is  to  sue  for  the 
tort,  the  time  within  which  suit  is  to  be  brought,  the  measure 
of  damages,  and  all  other  conditions  named  in  the  statute, 
affecting  the  substantive  rights  of  the  parties,  the  lex  loci 
delicti  is  strictly  followed,  after  it  is  once  determined  that 
its  enforcement  will  not  contravene  the  policy  of  the  forum. 

§  201.  Same  —  Proper  Plaintiff.  —  The  lex  loci  delicti  is  the 
proper  law  by  which  to  ascertain  the  person  who  is  to  sue  for  a 
death  caused  by  wrongful  act.  The  right  to  sue  accrues,  if  at 
all,  by  reason  of  the  statute  of  the  locus  delicti,  and  in  general 
no  one  can  take  advantage  of  the  right  conferred  by  that  law 
save  the  person  to  whom  that  law  gives  it. 

Thus  where  the  lex  delicti  designates  the  personal  represent- 
ative as  the  proper  complainant,  while  the  lex  fori  names  the 
widow,  the  latter,  in  her  individual  capacity  at  least,  will  not 
be  permitted  to  sue  in  the  forum,  even  though  by  the  lex  delicti 
the  representative  is  to  sue  for  her  benefit.^  On  the  other  hand, 
if  the  lex  delicti  prescribes  that  the  representative  is  to  sue 
for  the  benefit  of  others  than  the  party  designated  by  the  lex 
fori  as  the  complainant,  this  does  not,  under  the  modern  view, 
prevent  the  suit  from  being  brought  as  directed  by  the  lex 
delicti." 

If  the  lex  delicti  prescribes  the  widow,  heirs,  etc.,  as  the 
proper  parties  to  sue,  while  the  lex  fori  prescribes  the  personal 
representative  of  the  deceased,  the  same  principle  controls,  and 

103  U.  S.  11  ;  Law  ».  R.  R.  Co.,  91  Fed.  817,  819  ;  Higgins  v.  E.  R.  Co.,  156 
Mass.  176,  29  N.  E.  535, 536  ;  Nelson  ».  R.  R.  Co.,  88  Va.  971,  14  S.  E.  839  ; 
Herrick  v.  R.  R.  Co.,  31  Minn.  11,  47  Am.  Rep.  771,  773. 

•  In  Stewart  v.  R.  R.  Co.,  168  U.  S.  445,  there  seems  to  be  the  hint  of  a 
tendency  to  rely  upon  general  principles,  rather  than  upon  the  strict  lex  loci 
delicti.  See  also  Machado  ».  Fontes,  2  L.  R.  Q.  B.  D.  231,  where  a  similai 
tendency  is  exhibited. 

1  Usher  v.  R.  R.  Co.,  126  Penn.  St.  206, 17  AtL  598  ;  St.  Louis,  etc.  B.  B. 
Co.  V.  McCormick,  71  Tex.  660,  9  S.  W.  540. 

2  See  Stewart  r.  R.  R.  Co.,  168  U.  S.  445. 


494  SUITS   FOR   DEATH PROPER   PLAINTIFF.        §  201 

the  party  designated  by  the  lex  delicti  is  the  proper  plaintiff, 
without  regard  to  the  provisions  of  the  lex  fori.' 

In  cases  where  the  "proper  law"  names  the  personal  repre- 
sentative as  the  plaintiff,  a  question  arises  as  to  whether  this 
requires  the  representative  to  be  appointed  in  the  locus  delicti, 
or  whether  his  appointment  in  the  forum  will  suffice.  This 
question  has  once  before  been  discussed,  and  it  was  shown  that 
the  weight  of  authority  favors  the  doctrine  that  the  latter  is 
sufficient.* 

But  to  the  general  principle  that  only  the  party  designated 
by  the  lex  loci  delicti  may  sue,  one  exception  has  been  made  by 
the  Supreme  Court  of  the  United  States  in  Stewart  v.  R.  R. 
Co.*  In  that  case  the  death  took  place  in  Maryland,  and  suit 
was  brought  in  the  District  of  Columbia  by  the  administrator 
of  the  deceased.  By  the  law  of  Maryland,  suit  was  to  be  brought 
in  such  cases  in  the  name  of  the  State  of  Maryland,  for  the 
benefit  of  the  wife,  husband,  parent,  or  child  of  the  deceased. 
By  the  law  of  the  District  of  Columbia,  suit  was  to  be  insti- 
tuted by  the  representative  of  the  deceased  for  the  benefit  of  the 
general  distributees.  The  court  upheld  the  action  by  the  ad- 
ministrator on  the  ground  that  the  plaintiff  designated  in  the 
Maryland  statute  (that  is,  the  State  of  Maryland)  was  merely  a 
nominal  plaintiff.  So  was  the  plaintiff  named  by  the  law  of 
the  District  (the  personal  representative).  The  result  would 
hardly  have  been  the  same  if  the  party  named  as  plaintiff  by 
the  law  of  the  District  had  been  himself  the  recipient  of  the 
damages.  The  beneficiaries,  though  not  exactly  the  same  under 
both  statutes,  seem  to  have  been  regarded  by  the  court  as  prac- 
tically so.* 

8  Wooden  w.  R.  E.  Co.,  126  N.  Y.  10  ;  Limekiller  v.  R.  R.  Co.,  33  Kan.  83, 
52  Am.  Rep.  523  ;  Lower  v.  Segal,  59  N.  J.  L.  66,  34  Atl.  945  ;  Davidow  v. 
R.  R.  Co.,  85  Fed.  943,  944. 

4  Ante,  §  108.     See  Dennick  v.  R.  R.  Co.,  103  U.  S.  11. 

6  168  U.  S.  445.     But  see  Wilson  v.  Tootle,  55  Fed.  211. 

8  But  for  this  decision  of  a  most  eminent  tribunal  construing  the  Mary- 
land statute,  it  might  have  been  thought  that  that  act  was  intended  to  hare 
no  exterritorial  force,  since  it  prescribed  that  the  action  should  be  brought  in 
the  name  of  the  State  of  Maryland,  which  could  not  well  be  applicable  to  ac- 
tions brought  in  any  other  than  a  Maryland  court. 


§  202       SUITS   FOR   DEATH  —  OTHER   CONDITIONS.  495 

§  202.  Same  —  Other  Conditiona  of  Suit.  —  Not  only  does 
the  lex  delicti  determine  who  is  the  proper  plaintiff  in  actions 
for  death  by  wrongful  act,  but  the  same  law  controls  also  all  the 
other  substantive  conditions  attached  to  the  right  to  sue. 

Thus,  in  Hamilton  v.  R.  R.  Co.,^  the  death  was  caused  in 
Missouri,  and  action  therefor  was  brought  by  the  widow  in 
Kansas.  By  the  law  of  Missouri,  the  widow  was  authorized  to 
sue  in  such  cases ;  but  should  she  omit  to  sue  for  six  months, 
the  minor  children  of  the  decedent  were  to  sue.  The  plaintiff's 
petition  alleged  that  the  deceased  left  minor  children  surviving 
him,  but  did  not  show  that  the  action  was  instituted  within  six 
months  after  the  decedent's  death.  Upon  demurrer,  the  peti- 
tion was  adjudged  insufficient,  in  that  it  did  not  state  all  the 
requirements  essential  to  make  a  cause  of  action  under  the  law 
of  Missouri  (lex  loci  delicti).  The  court  said:  *'The  provision 
designating  where  and  by  whom  the  suit  may  be  brought  is 
more  than  a  mere  limitation:  it  is  a  condition  imposed  by  the 
legislature,  which  qualifies  the  right  of  recovery,  and  upon 
which  its  exercise  depends." 

So  also,  if  the  statute  of  the  locus  delicti  which  creates  the 
liability  prescribes  a  period  within  which  the  action  must  be 
brought,  this  is  not  a  mere  statute  of  limitation  (and  as  such  to 
be  controlled  by  the  lex  fori''),  but  it  is  *'a  condition  imposed 
by  the  legislature,  which  qualifies  the  right  of  recovery,  and 
upon  which  its  exercise  depends."  '  But  if  the  statute  of  the 
locus  delicti  designates  no  special  period  within  which  the 
action  shall  be  brought,  leaving  the  matter  to  be  controlled 
by  the  general  statutes  of  limitation,  the  question  is  to  be  de- 
cided in  accordance  with  the  lex  fori.* 

So  also,  it  is  believed,  the  lex  loci  delicti  should  regulate  the 

1  39  Kan.  687,  18  Pac.  57,  61. 

2  Post,  §  210. 

'  Hamilton  w.  E.  R.  Co.,  39  Kan.  687,  18  Pac.  57,  61  ;  The  Harrisburg, 
119  U.  S.  199,  214;  Cavanagh  v.  Nav.  Co.,  13  N.  Y.  Supp.  540.  But  in 
actions  for  common  law  torts,  the  lex  fori  in  general  controls  in  respect  to  th« 
period  within  which  the  suit  may  be  brought.  See  Nonce  v.  R.  R.  Co.,  33  B'ed. 
429,  436  ;   Johnston  v.  R.  R.  Co.,  50  Fed.  886. 

♦  Munos  V.  R.  R.  Co.,  2  C.  C.  A.  163,  51  Fed.  188. 


496  SUITS  FOR  DEATH  —  OTHER  CONDITIONS.       §  202 

amount  of  damages  recoverable,  if  limited  in  the  statute  creating 
the  right  to  sue,  and  the  persons  who  are  to  enjoy  the  benefit 
of  the  damages  recovered.  Thus  the  creditors  of  the  decedent 
(unless  perhaps  they  are  citizens  of  the  forum)  should  not  be 
permitted  to  seize  such  damages,  even  though  that  course  be 
allowed  under  the  lex  fori,  if  the  lex  delicti  confers  them  upon 
pertain  members  of  his  family  free  from  his  debts. 


§  308  CBIMBS  LOCAL.  497 


CHAPTER    XXI. 

SITUS  OF  CRIMES. 

§  203.  Crimes  generally  Local,  not  Transitory.  —  Although 
it  is  true  that  in  some  countries,  whose  laws  are  based  upon  the 
Eoman  law,  the  principle  has  been  established  that  the  criminal 
laws  of  the  State  follow  its  citizens  abroad,  and  that  upon 
their  return  they  are  to  be  punished  for  their  violations  of  the 
domiciliary  law  while  abroad,  the  reverse  is  the  general  rule  in 
those  States  whose  laws  are  founded  upon  the  common  law 
system.^ 

It  is  admitted  that  the  State  has  the  power  to  enact  criminal 
laws  which  may  even  follow  its  citizens  abroad,  and  that,  upon 
their  return  to  its  jurisdiction,  it  may  punish  them  for  their 
violations  of  such  laws,  even  when  those  violations  occur  in 
other  States ;  and  in  some  instances,  even  in  common  law  States, 
such  laws  have  been  enacted.'  But  in  the  United  States  there  is 
one  limitation  imposed  upon  the  power  of  a  State  to  punish  ex- 
territorial offenses  against  its  laws.  This  limitation  is  that  the 
accused  should  be  a  citizen  of  the  State  whose  law  he  has  vio- 
lated at  the  time  when  the  alleged  foreign  violation  occurs.  K 
he  resides  in  another  State  at  the  time  of  the  act,  though  he  was 
previously  a  resident  of  the  State  whose  law  he  is  accused  of 
violating,  or  subsequently  becomes  such,  he  is  not  liable  to  pun- 
ishment there.  In  this  country,  the  criminal  laws  of  a  State 
can  only  operate  upon  citizens  and  persons  actually  or  construc- 
tively perpetrating  crimes  within  its  jurisdiction.' 

1  Manley  v.  People,  7  N.  Y.  295  ;  State  v.  Mitchell,  83  N.  C.  674  ;  State 
V.  Hall,  114  N.  C.  909,  41  Am.  St.  Rep.  822  ;  Com.  v.  Ktrnzmann,  41  Penn. 
St.  429. 

2  Ex  parte  Kinney,  3  Hughes  (U.  S.),  9. 

»  See  Ex  parte  Kinney,  3  Hughes  (U.  S.)  9,  19,  20;  Hanks  v.  State,  13 
Tex.  App.  289. 

82 


498  SITUS  OF  CRIMES.  §  204 

If  the  State  has  the  power  to  enact  laws  which  by  their  ex- 
press  terms  punish  acts  of  its  citizens  when  committed  abroad, 
it  would  seem  to  follow  that  the  same  effect  must  be  given  to 
necessary  implication  arising  from  the  terms  and  circumstances 
of  the  law.  In  other  words,  should  the  policy  of  the  law  neces- 
sarily point  to  its  exterritorial  operation,  it  must  be  given  effect 
as  against  the  citizens  of  the  State  upon  their  return  thither,  if 
they  have  violated  the  law  abroad.  But  the  implication  should 
be  a  necessary  one.* 

In  ordinary  cases  certainly,  the  general  principle  of  the  com- 
mon law  is  to  be  followed,  that  crimes  are  strictly  local  in  char- 
acter, and  are  to  be  punished  only  by  the  State  in  whose  territory 
they  are  committed  and  in  accordance  with  its  laws.  The  lex 
loci  delicti  is  the  ''proper  law"  here,  as  in  the  case  of  torts; 
but  there  is  an  essential  difference  between  the  two  kinds  of 
wrong,  arising  from  the  fact  that,  while  a  tort  is  an  injury  to 
an  individual  who  may  have  his  situs  anywhere,  a  crime  is  an 
injury  to  the  State  where  it  is  committed.  This  difference  is 
that  the  responsibility  for  torts  is  in  general  transitory,  and  an 
action  may  be  brought  therefor  in  any  State  where  jurisdiction 
of  the  defendant's  person  may  be  obtained,  while  the  responsi- 
bility for  crimes  is  usually  local,  no  courts  in  general  having 
jurisdiction  thereof  save  the  courts  of  the  State  where  the  crime 
is  committed.^  This  is  based  upon  the  idea  that  the  crime  is  an 
offense  against  the  sovereignty  and  good  order  of  the  State 
within  whose  jurisdiction  it  occurs,  and  that  each  State  must 
attend  to  the  vindication  of  its  own  sovereignty.* 

§  204.  Situs  of  Crimes.  —  Although,  as  already  mentioned, 
the  general  rule  is  that  the  locus  delicti  furnishes  not  only  the 

*  Ex  parte  Kinney,  3  Hughes,  9. 

5  Manley  v.  People,  7  N.  Y.  295  ;  Com.  v.  Kunzmann,  41  Penn.  St.  429  ; 
State  V.  Mitchell,  83  N.  C.  674  ;  State  v.  Hall,  114  N.  C.  909,  41  Am.  St.  Rep. 
822.     See  Johns  v.  State,  19  Ind.  421,  81  Am.  Dec.  408. 

6  Upon  a  somewhat  similar  principle  it  has  been  held,  though  often  re- 
gretted, that  the  courts  of  one  State  will  not  attempt  to  enforce  the  revenue 
laws  of  another  State  (even  though  not  criminal  in  character),  —  a  remarkable 
departure,  it  would  seem,  from  the  spirit  of  friendly  comity  which  usually 
animates  the  intercourse  of  States  with  each  other.  See  Story,  Confl.  L.  §§  246, 
246  ;  Henry  v.  Sargeant,  13  N.  H.  321  ;  a»te,  §  9. 


\204  SITUS  OP  CEiMES.  499 

law  by  which  a  crime  is  to  be  punished,  but  also  the  jurisdiction 
to  punish  it,  it  is  not  always  easy  to  ascertain  what  is  the  situs 
of  the  crime  in  a  particular  case. 

If  a  principal  in  the  first  degree  in  one  State  employs  an  in- 
nocent or  irresponsible  agent,  sentient  or  inanimate,  through 
whose  aid  he  commits  a  crime  in  another  State,  the  law  regards 
the  principal  as  himself  present  and  acting  through  the  agent 
or  instrumentality  at  the  point  where  the  act  is  done,  just  as  if 
he  were  actually  and  personally  there.  He  may  be  in  fact  the 
citizen  of  another  State,  outside  of  whose  limits  he  may  never 
have  set  his  foot,  but  he  is  nevertheless  constructively  present 
at  the  place  where  the  crime  takes  effect,  through  the  irrespon- 
sible agent  set  in  motion  by  him.* 

Thus,  in  Adams  v.  People,  ^  Adams  was  a  citizen  of  Ohio  who 
forged  a  paper  and  sent  it  to  an  agent  in  New  York  who  knew 
not  that  it  was  forged.  The  agent  there  uttered  the  forged  in- 
strument. Afterwards  A  was  apprehended  in  New  York,  charged 
with  obtaining  money  there  under  false  pretenses.  It  was  held 
that  the  act  of  the  innocent  agent  in  New  York  was  his  act, 
and  therefore  that  the  situs  of  the  crime  was  New  York,  The 
accused  pleaded  his  Ohio  citizenship,  and  that  he  was  not  at  the 
time  of  the  offense  subject  to  New  York  law,  but  without  avail. 

The  same  principle  is  applied  in  cases  where  one,  being  in 
one  State,  discharges  a  gun  or  otherwise  puts  in  motion  an  in- 
strumentality, by  which  the  death  of  a  person  results  in  another 
State,  He  is  guilty  of  homicide  in  the  State  where  the  fatal 
blow  takes  effect,  and  is  deemed  to  accompany  his  bullet  or 
other  instrumentality  to  its  destination,  and  therefore  to  be 
constructively  present  there  when  it  takes  effect.'  And  the 
fact  that  the  mortal  blow  is  given  in  one  State  while  the  death 
ensues  in  another  does  not  alter  the  principle.  The  place  of  the 
mortal  blow  is  the  situs  of  the  homicide,   the  death  being  a 

1  Adams  v.  People,  1  Comst.  (N.  Y.)  173;  People  v.  Adams,  3  Denio 
(N.  Y.),  190,  45  Am.  Dec.  468 ;  Lindsey  v.  State,  38  Ohio  St.  507. 

2  1  Comst.  (N.  Y.)  173. 

»  State  V.  Chapin,  17  Ark.  561,  65  Am.  Dec.  452  ;  People  v.  Adams, 
3  Denio  (N.  Y.),  190,  45  Am.  Dec.  468.  See  Com.  t;.  Macloon,  101  Masa 
1,  100  Am.  Dec  89. 


600  SITUS  OP  CRIMES.  §  204 

mere  consequence.  Although  it  has  sometimes  been  doubted 
whether  this  was  the  rule  at  common  law,*  the  overwhelming 
weight  of  authority  in  the  United  States  is  in  favor  of  this  doc- 
trine. The  place  of  death  is  held  to  be  immaterial.®  A  familiar 
case  of  this  kind  is  United  States  v.  Guiteau.'  President  Gar- 
field was  shot  by  Guiteau  in  the  city  of  Washington  and  died 
at  Long  Branch,  in  New  Jersey.  The  prisoner  was  tried  and 
convicted  of  murder  in  the  courts  of  the  District  of  Columbia. 

But  if  in  the  State  where  the  death  occurs  the  law  provides 
expressly  for  the  punishment  of  the  criminal  there,  though  the 
mortal  blow  is  given  elsewhere,  it  is  said  that  the  courts  of  the 
former  State  may  assume  jurisdiction  to  try  the  offender  for 
the  murder.' 

The  same  principle,  it  seems,  governs  in  the  case  of  an  assault 
with  intent  to  kill,  as  where  one  standing  in  one  State  shoots 

*  1  Hawk.  P.  C.  c.  13,  sec.  13;  1  Chitty,  Grim.  Law,  178 ;  1  Hale,  P.  C. 
426.     See  Com.  v.  Linton,  2  Va.  Cas.  205. 

*  United  States  v.  Guiteau,  1  Mackey,  498,  47  Am.  Eep.  247;  Ex  parte 
McNeely,  36  W.  Va.  84,  32  Am.  St.  Rep,  831 ;  State  v.  Gessert,  21  Minn.  389  ; 
State  r.  Bowen,  16  Kan.  475 ;  State  v.  Foster,  8  La.  Ann.  290,  58  Am.  Dec. 
678  ;  Stout  v.  State,  76  Md.  317,  25  Atl.  299 ;  State  v.  Carter,  27  N.  J.  L. 
499  ;  State  v.  Kelly,  76  Me.  331,  49  Am.  Rep.  620 ;  Simpson  v.  State,  92  Ga. 
41,  44  Am.  St.  Rep.  75,  and  note  ;  State  v.  Hall,  114  N.  C.  909,  41  Am.  St. 
Rep.  822. 

«  1  Mackey,  498,  47  Am.  Rep.  247. 

'  Com.  V.  Macloon,  101  Mass.  1,  100  Am.  Dec.  89.  In  this  case  the  mortal 
blow  was  given  upon  the  high  seas,  the  death  resulting  therefrom  in  Massa- 
chusetts. See  also  Tyler  v.  People,  8  Mich.  320,  333.  It  may  be  more  doubt- 
ful whether  the  same  rule  would  apply  where  the  place  of  the  mortal  stroke 
is  subject  to  a  definite  system  of  law  of  its  own.  The  perpetrator  commits  no 
overt  act  in  the  State  where  the  death  occurs,  and  the  constitutional  power  of 
that  State  to  punish  him  may  perhaps  be  questioned.  The  reasoning  of  the 
court  however  in  Com.  v.  Macloon,  supra,  leans  towards  the  constitutionality  of 
such  legislation.  See  Simpson  v.  State,  92  Ga.  41,  44  Am.  St.  Rep.  75,  82,  note. 
But  see  State  v.  Carter,  27  N.  J.  L.  499 ;  State  v.  Kelly,  76  Me.  331.  If 
the  accused  has  administered  poison  or  delivered  the  blow  in  one  State, 
which  he  believes  has  resulted  in  death  in  that  State,  and  afterwards  takes  his 
rictim  into  another  State,  where  for  the  better  concealment  of  the  crime  he 
decapitates  him  (the  decapitation  being  the  real,  though  unintended  cause  of 
death),  the  situs  of  the  homicide  is  the  latter  State,  not  the  former.  Jacksoa 
».  Com.,  100  Ky.  239,  38  S.  W.  1091  [Pearl  Bryan  Case]. 


S  204  SITUS  OF  CRIMES.  501 

at  another  in  a  neighboring  State,  even  though  he  misses  him 
altogether,  provided  the  bullet  or  other  missile  reaches  the  terri- 
tory of  the  latter  State.  The  assailant  is  presumed  to  follow  up 
his  bullet,  and  constructively  makes  the  attempt  to  kill  in  the 
State  where  the  bullet  strikes.^ 

A  criminal  conspiracy  is  complete  where  the  conspiracy  is 
entered  into,  without  regard  to  the  further  perpetration  of  the 
illegal  act  which  is  the  subject  of  the  conspiracy.  Hence  if  the 
conspiracy  is  entered  into  in  one  State  to  execute  a  criminal  act 
in  another,  the  situs  of  the  conspiracy  is  the  former  State,  and 
that  State  has  jurisdiction  of  that  offense.'  And  while  it  is  a 
general  rule  of  municipal  law  that  the  performance  of  the  crim- 
inal act  itself  merges  the  conspiracy,  it  may  well  be  doubted  if 
this  result  would  follow  in  cases  where  the  conspiracy  occurs  in 
one  State  while  the  criminal  act  itself  takes  place  in  another. 

So  accessaries  before  or  after  the  fact  in  one  State  to  a  felony 
committed  in  another  are  guilty  in  the  State  where  they  become 
<accessaries.  That  State  is  the  situs  of  their  crime,  and  they 
must  be  tried  there.^" 

The  situs  of  a  forgery,  it  is  said,  is  the  place  where  the  forged 
instrument  is  uttered  and  published  with  intent  to  defraud,  not 
the  place  where  the  writing  is  falsely  made,  added  to,  or  altered.^^ 

»  Simpson  v.  State,  92  Ga.  41,  44  Am.  St.  Rep.  75. 

9  Simpson  v.  State,  92  Ga.  41,  44  Am.  St.  Rep.  75,  82,  note  ;  Dealy  v.  United 
States,  152  U.  S.  539  ;  United  States  v.  Britton,  108  U.  S.  204;  Ex  parte 
Rogers,  10  Tex.  App.  655,  38  Am.  Rep.  654.  See  United  States  v.  Howell, 
56  Fed.  21.  And  this  is  true  perhaps  even  though  the  act  to  be  done  in  pur- 
suance of  the  conspiracy  is  not  an  illegal  act  in  the  State  where  it  is  to  be  per- 
formed.    See  Lacey  v.  Palmer,  93  Va.  159,  31  L.  R.  A.  822,  24  S.  E.  930. 

10  Simpson  v.  State,  92  Ga.  41,  44  Am.  St.  Rep.  75,  82,  note;  State  v. 
Chapin,  17  Ark.  561,  65  Am.  Dec.  452  ;  State  v.  Wyckotf,  31  N.  J.  L.  65  ; 
Johns  V.  State,  19  Ind.  421,  81  Am.  Dec.  408 ;  State  v.  Moore,  26  N.  H.  448  ; 
59  Am.  Dec.  354.  But  see  State  v.  Grady,  34  Conn.  118  ;  Com.  v.  Chiovaro, 
129  Mass.  497  ;   Com.  v.  Pettes,  114  Mass.  311. 

"  Simpson  v.  State,  92  Ga.  41,  44  Am.  St.  Rep.  75,  83,  note ;  Lindsey  v. 
State,  38  Ohio  St.  507  ;  Ex  parte  Rogers,  10  Tex.  App.  655,  38  Am.  Rep.  654  ; 
Rogers  v.  State,  11  Tex.  App.  608  ;  Foute  v.  State,  15  Lea  (Tenn.),  712.  See 
Hanks  v.  State,  13  Tex.  App.  289;  Ex  parte  Carr,  28  Kan.  1.  This  is  cer- 
tainly the  place  of  the  utterance.  But  a  forgery  may  be  complete  withoat 
utterance.     The  place  of  the  completion  of  the  offense  is  the  locus  delictL 


602  SITUS   OF   CRIMES.  §  204 

So,  in  the  case  of  obtaining  money  or  property  under  false 
pretenses,  if  the  false  representations  are  made  in  one  State 
while  the  money  or  property  is  obtained  in  another,  the  crime 
is  completed  in  the  latter  State,  not  in  the  former,  for  the  false 
representations  standing  alone  constitute  no  criminal  offense. 
The  latter  State  is  the  situs  of  the  crime.  ^'^ 

The  situs  of  a  criminal  libel  is  the  situs  of  its  publication. 
Hence  one  who  publishes  a  libel  in  one  State  in  a  newspaper 
which  circulates  in  another  also,  is  liable  to  indictment  in  either 
State,  or  in  both.^' 

With  respect  to  the  situs  of  the  crime  of  larceny,  some  diffi- 
culty arises  where  the  goods  have  been  stolen  in  one  State  and 
are  afterwards  brought  into  another.  A  difference  of  opinion 
exists  in  such  case  whether  or  not  the  thief  may  be  prosecuted 
in  the  latter  State.  On  the  one  hand  it  has  been  said  by  emi- 
nent authorities  that  each  step  taken  by  the  thief  after  he  has 
stolen  the  goods  constitutes  a  new  asportation  of  them,  and 
hence  a  new  larceny,  and  that  he  is  therefore  guilty  of  the  lar- 
ceny of  the  goods  in  each  State  to  which  he  comes  bringing 
them  with  him." 

As  between  two  counties  of  the  same  State,  it  is  admitted 
that  a  thief  stealing  goods  in  one  county  and  carrying  them  into 
another  may  be  tried  in  either  county;  the  reason  often  assigned 
for  the  doctrine  being  the  fiction  above  given.  ^^    But  here  there 

12  Com.  V.  Van  Tuyl,  1  Met.  (Ky.)  1,  71  Am.  Dec.  455  ;  Stewart  v.  Jes- 
sup,  51  Ind.  413,  19  Am.  Rep.  739.  See  United  States  v.  Plympton,  4  Cr. 
C.  C.  309;   State  v.  Schaeffer,  89  Mo.  271, 1  S.  W.  293. 

1^  Com.  V.  Blanding,  3  Pick.  (Mass.)  304;  Com.  v.  Macloon,  101  Mass. 
1,  100  Am.  Dec.  89,  93. 

"  Simpson  t-.  State,  92  Ga.  41,  44  Am.  St.  Rep.  75,  82,  note  ;  People  t;. 
Staples,  91  Cal.  23;  Kidd  v.  State,  83  Ala.  58  ;  Powell  v.  State,  52  Wis.  217  ; 
Mack  V.  People,  82  N.  Y.  235;  People  v.  Burke,  11  Wend.  (N.  Y.)  129; 
Dixon  V.  State,  15  Tex.  App.  480  ;  McKenzie  v.  State,  32  Tex.  Cr.  R.  568,  40 
Am.  St.  Rep.  795  ;  State  v.  Underwood,  49  Me.  181,  77  Am.  Dec.  254  ;  Hem- 
maker  V.  State,  12  Mo.  453,  51  Am.  Dec.  172 ;  Com.  v.  Andrews,  2  Mass.  14, 
3  Am.  Dec.  17;  Com.  v.  White,  123  Mass.  433.  But  see  Com.  i;.  Uprichard, 
3  Gray  (Mass.),  434,  63  Am.  Dec.  762;  Com.  v.  Macloon,  101  Mass.  1,  100 
Am.  Dec.  89,  92. 

"  Com.  V.  Macloon,  101  Mass.  1,  100  Am.  Dec.  89,  92  ;  Strouther's  Quae, 
92  Va.  789,  791. 


§  204  SITUS  OP  CRIMBfi.  508 

is  another  principle  of  the  common  law  that  cornea  Into  play, 
prohibiting  the  injustice  of  a  double  punishment  to  the  thief 
for  the  same  offense,  which  would  operate  to  prevent  his  punish- 
ment in  both  counties.  The  same  system  of  law  that  originates 
the  fiction  furnishes  this  check  upon  it. 

But  as  between  two  sovereign  States  this  check  is  wanting. 
If  the  fiction  is  to  prevail,  there  is  nothing  to  prevent  (indeed 
it  is  the  sworn  duty  of  the  courts  of  each  State  to  require)  the 
punishment  of  the  thief  in  both  States,  or  in  as  many  as  he 
enters  with  the  goods,  provided  the  jurisdiction  of  his  person 
can  be  secured.  Certainly  it  would  seem  that  the  removal  of 
the  check  upon  injustice  which  is  imposed  when  all  the  trans- 
actions take  place  in  the  same  State,  should,  as  between  several 
States,  remove  also  the  fiction  which  is  the  origin  of  the  possible 
injustice. 

There  are  a  goodly  number  of  authorities  which  take  this 
view  of  the  question,  and  deny  to  the  courts  of  the  State  whither 
a  thief  has  taken  stolen  goods,  in  the  absence  of  express  statutes 
of  the  latter  State,  the  right  to  try  or  punish  him  for  the  offense. 
And  this  would  seem  to  be  the  better  rule." 

In  cases  of  crimes  committed  in  a  State  by  one  construc- 
tively, though  not  actually,  present  there,  as  in  case  of  a  per- 
son in  one  State  shooting  a  person  in  another,  or  sending  him 
poisoned  candy,  etc.,  through  the  mails,  an  interesting  question 
arises  as  to  whether  the  criminal  may  be  extradited  to  the  State 
where  the  crime  has  been  committed,  under  the  provisions  of 
the  federal  constitution  to  the  effect  that  "  a  person  charged 
with  treason,  felony,  or  other  crime,  who  shall  flee  from  justice 
and  be  found  in  another  State  shall,  on  demand  of  the  executive 

16  Strouther's  Case,  92  Va.  789,  792  ;  State  v.  Brown,  1  Hayw.  (N.  C.)  100  ; 
Simmons  v.  Com.,  5  Binn.  (Penn.)  617;  Simpson  v.  State,  4  Humph.  (Tenu). 
456;  Com.  v.  Uprichard,  3  Gray  (Mass.),  434,  63  Am.  Dec.  762;  Com.  v. 
Macloon,  101  Mass.  1,  100  Am.  Dec.  89,  92;  Lee  v.  State,  64  Ga.  203,  37 
Am.  Eep.  67;  Beal  v.  State,  15  Ind.  378;  State  v.  Newman,  9  Nev.  48,  16 
Am.  Rep.  3.  If  the  larceny  in  the  first  State  is  forcible  and  violent,  making 
it  a  robbery,  and  the  goods  thus  taken  are  brought  into  another  State,  it  is  cer- 
tain that  the  party  cannot  be  tried  for  robbery  in  the  second  State.  This  is 
true  even  as  between  two  counties  of  the  same  State.  Com.  v.  Macloon,  101 
Mass.  1,  100  Am.  Dec.  89,  92. 


504  SITUS   OF   CRIMES.  §  204 

authority  of  the  State  from  which  he  fled,  be  delivered  up,  to 
be  removed  to  the  State  having  jurisdiction  of  the  crime."  " 
This  provision,  according  to  the  current  of  authority,  implies 
that  the  accused  must  have  been  actually  within  the  jurisdiction 
of  the  accusing  State  and  must  have  fled  therefrom.  If  in  fact 
he  was  never  within  the  jurisdiction  of  that  State,  he  cannot 
by  a  fair  construction  of  words  be  said  to  have  fled  from  its 
justice.^^ 

"  U.  S.  Const,  art.  iv.  §  2,  cl.  2. 

18  Ex  parte  Smith,  3  McLean,  133  ;  State  v.  Hall,  114  N.  C.  909,  41  Am. 
St.  Rep.  822  ;  Jones  v.  Leonard,  50  la.  106  ;  Hartman  v.  Aveline,  63  Ind.  344. 
In  re  Mohr,  73  Ala.  503.  It  is  argued  on  the  other  side  that  if  the  wrongdoer 
can  be  said  to  be  constructively  preseut  in  the  State  of  the  crime  for  the  pur- 
pose of  giving  it  jurisdiction  over  the  oflFense,  his  subsequent  presence  else- 
where can  only  be  accounted  for  by  the  fact  that  (constructively)  he  has  fled 
from  that  State.  Certainly  much  failure  of  justice  may  result  from  the  first 
doctrine.  For  instance,  in  State  v.  Hall,  supra,  a  person  standing  in  North 
Carolina  shot  another  in  Tennessee.  The  defendant  was  first  indicted  iu 
North  Carolina  for  the  killing,  but  it  was  held  that  the  crime  was  committed 
in  Tennessee,  and  that  the  North  Carolina  courts  had  no  jurisdiction  to  pun- 
ish him.  It  was  subsequently  held  that  he  could  not  be  extradited  to  Ten- 
nessee, since  he  was  not  a  "fugitive"  from  the  justice  of  Tennessee.  Two 
judges  strongly  dissented.  See  41  Am.  St.  Rep.  822,  note,  where  the  dissent* 
ing  opinion  is  given  in  full. 


§  205      NAIUBE  OP  REMEDY  —  FOBM  OF  ACTION.  606 


PART  VIL 

SITUS  OF  REMEDIES. 


CHAPTER    XXII. 

SITUS  OF  REMEDIES. 

§  205.   Nature  of  the  Remedy  —  Form  of  the  Action.  —  It  ii 

an  obvious  proposition  that  the  situs  of  the  remedy  is  the  forum 
in  which  the  remedy  is  prosecuted.  Hence  the  "proper  law' 
controlling  all  matters  pertaining  to  the  remedy  is  the  lex  fori, 
just  as  the  lex  situs  of  every  other  element  in  a  given  case 
governs  the  effect  of  that  element.  In  accordance  with  these 
principles,  it  is  well  established  that  all  matters  touching  the 
remedy  and  the  mode  of  procedure,  whether  the  injury  com- 
plained of  be  a  breach  of  contract,  a  tort,  or  a  question  of  title, 
are  to  be  governed  by  the  lex  fori,  regardless  of  the  domicil  of 
the  parties  or  the  situs  of  the  cause  of  action.* 

It  is  sometimes  extremely  difficult  to  discern  whether  a  par- 
ticular inquiry  relates  to  the  remedy,  or  is  a  substantive  part  of 
the  cause  of  action  or  of  the  rights  of  the  parties.  The  distinc- 
tion however  is  one  of  the  utmost  importance,  for  upon  it  will 
often  depend  the  "proper  law"  which  should  govern  a  case.' 

1  Pritchard  v.  Norton,  106  U.  S.  124,  129  et  seq.  ;  Bank  v.  Donnally,  8  Pet. 
361 ;  Ruhe  v.  Buck,  124  Mo.  178,  25  L.  R.  A.  178 ;  Burchard  r.  Dunbar,  82 
111.  450,  25  Am.  Rep.  334  ;  Hoadley  v.  Transportation  Co.,  115  Mass.  304  ; 
Russell  V.  R.  R.  Co.,  113  Cal.  258,  45  Pac.  323,  324  ;  Thomson-Houston 
Electric  Co.  v.  Palmer,  52  Minn.  174,  53  N.  W.  1137,  1138 ;  Downer  v. 
Chesebrough,  36  Conn.  39,  4  Am.  Rep.  29;  Wicks  v.  Dawson,  42  W.  Va.  43, 
24  S.  E.  587. 

2  Instances  of  these  diflBculties  have  already  been  noted,  and  a  criterion  has 
been  kid  down  in  the  case  of  contracts  by  which  to  ascertain  whether  a  par. 


506  NATURE   OF  REMEDY  —  FORM   OF  ACTION.      §  205 

Difficult  questions  sometimes  arise  also,  in  actions  ex  con- 
t'>-actu,  from  the  fact  that  the  form  of  the  remedy  will  frequently 
depend  upon  the  form  of  the  contract  which  constitutes  the 
cause  of  action. 

For  example,  an  action  of  assumpsit  does  not  lie  at  common 
law  upon  a  sealed  instrument.  But  supposing  the  instrument 
to  be  made  in  one  State  and  the  remedy  thereon  to  be  sought  in 
another,  it  might  be  that  under  the  law  of  one  of  these  States 
the  instrument  sued  upon  might  be  regarded  as  a  sealed  instru- 
ment, while  it  might  be  unsealed  by  the  law  of  the  other  State. 
In  such  case,  if  the  inquiry  is  directed  solely  toward  the  form 
of  remedy  to  be  applied,  the  authorities  are  agreed  that  the  lex 
fori  is  to  determine  whether  for  that  purpose  the  contract  is 
under  seal,  and  the  law  of  the  viitus  of  the  contract  is  imma- 
terial.' But  if  the  nature  of  the  contract  sued  upon,  as  sealed 
or  unsealed,  is  inquired  into,  not  with  a  view  to  ascertaining 
the  form  of  the  remedy,  but  with  the  purpose  of  determining  the 
obligation  and  effect  of  the  contract,  the  law  of  the  situs  of  the 
contract,  not  the  lex  fori,  will  control.* 

In  Le  Roy  v.  Beard,  ^  a  covenant  was  executed  and  to  be 
performed  in  Wisconsin,  which  by  the  law  of  Wisconsin  wa? 
under  seal  (being  sealed  with  a  scroll  or  scrawl),  but  which  the 
law  of  New  York  did  not  regard  as  under  seal.  Assumpsit  be- 
ing brought  thereon  in  New  York,  it  was  held  that  assumpsit, 
not  covenant,  was  the  proper  form  of  action  in  New  York.  In 
the  course  of  the  opinion  the  court  said:  "It  was  obliged  to  be 
in  assumpsit  in  the  State  of  New  York.  .  .  .  We  hold  this,  too, 
without  impairing  at  all  the  principle  that,  in  deciding  on  the 
obligation  of  the  instrument  as  a  contract,  and  not  the  remedy 

ticular  matter  is  a  part  of  its  obligation  or  relates  to  the  remedy.  See  ante, 
§§  180,  182.  See  also  Euhe  v.  Buck,  124  Mo.  178,  25  L.  K.  A.  178  ;  Downer 
V.  Chesebrough,  36  Conn.  39,  4  Am.  Rep.  29  ;  Baxter  Nat.  Bank  v.  Talbot, 
154  Mass.  213,  28  N.  E.  163  ;  Hoadley  v.  Transportation  Co.,  115  Mass.  304 ; 
Burchard  v.  Dunbar,  82  111.  450,  25  Am.  Rep.  334 ;  post,  §§  209,  210. 

»  Pritchard  v.  Norton,  106  U.  S.  124,  133  ;  Le  Roy  v.  Beard,  8  How.  451  ; 
Bank  v.  Donnally,  8  Pet.  361,  373  ;  "Warren  v.  Lynch,  5  Johns.  (N.  Y.)  239  ; 
Andrews  v.  Herriot,  4  Cow.  (N.  Y.)  508  ;  McClees  v.  Burt,  5  Met.  (Mass.)  198. 

*  Pritchard  v.  Norton,  106  U.  S.  124,  133  ;  Le  Roy  v.  Beard,  8  How.  451. 

»  8  How.  451. 


§  206      NATURE   OF  REMEDY  —  FORM  OF  ACTION.  50l 

on  it  elsewhere,  the  law  of  Wisconsin,  as  the  lex  loci  contractus, 
must  govern." 

In  Trasher  v.  Everhart,'  a  single  bill  was  made  in  Virginia 
(where  it  was  not  deemed  a  specialty).  Suit  being  brought 
thereon  in  Maryland,  it  was  held  that  assumpsit  was  not  main- 
tainable as  upon  a  simple  contract,  but  that  the  action  must 
be  debt;  because  in  Maryland,  such  single  bill  was  deemed  % 
specialty. 

So,  in  Warren  v.  Lynch,''  a  promissory  note  executed  in  Vir- 
ginia with  a  scrawl  (which  there  made  it  a  sealed  instrument) 
was  held  in  New  York,  for  the  purpose  of  determining  the  proper 
form  of  action,  to  be  an  unsealed  instrument,  the  laws  of  New 
York  recognizing  no  instrument  as  sealed  save  such  as  were 
sealed  with  wax  or  wafer. 

On  the  other  hand,  in  Watson  v.  Brewster,*  suit  was  brought 
in  Pennsylvania,  by  whose  law  a  scroll  was  a  seal,  upon  a  note 
executed  in  New  York  with  a  scroll  attached  by  way  of  seal. 
It  was  again  held  that  the  nature  of  the  instrument,  as  sealed 
or  unsealed,  for  the  purpose  of  determining  the  form  of  the 
remedy,  should  be  governed  by  the  lex  fori. 

So,  the  questions  whether  the  remedy  shall  be  at  law  or  in 
equity,  in  personam  or  in  rem,  summary  or  by  regular  process 
of  law,  etc.,  are  generally  to  be  regarded  as  matters  pertaining 
to  the  remedy  only,  to  be  controlled  by  the  lex  fori.' 

In  Burchard  v.  Dunbar,^*'  a  promissory  note  was  executed  in 
New  York  by  a  married  woman  for  a  debt  of  her  husband,  and 
was  charged  upon  her  separate  estate.  An  action  of  assumpsit 
was  brought  on  the  note  in  Illinois,  to  which  she  and  her  hus- 
band were  made  defendants,  and  judgment  was  recovered  against 
them  in  the  lower  court.     By  the  law  of  New  York  the  charge 

•  3  Gill  k  J.  (Md.)  234. 

7  5  Johns.  (N.  Y.)  239.  See  also  Andrews  v.  Herriot,  4  Cow.  (N.  Y.)  508 ; 
McQees  v.  Burt,  5  Met.  (Mass.)  198. 

8  1  Penn.  St.  381. 

9  Burchard  v.  Dunbar,  82  111.  450,  25  Am.  Rep.  334,  838  ;  Drake  v.  Rice, 
180  Mas.s.  410  ;  New  York  L.  Ins.  Co.  v.  Aitkin,  125  N.  Y.  660,  672 ;  Buh« 
».  Buck,  124  Mo.  178,  25  L.  R.  A.  178. 

10  82  111.  450,  25  Am.  Rep.  334,  338. 


608    NATURE  OF  REMEDY  —  FORM  OF  ACTION.   §  205 

was  valid  and  could  be  enforced  in  an  action  at  law  against 
her  and  her  husband.  By  the  Illinois  law,  it  constituted  an 
equitable  charge,  enforceable  only  in  equity.  The  court  held 
that  while  the  obligation  of  the  woman's  contract  was  dependent 
upon  the  law  of  New  York,  the  mode  of  enforcing  that  obligation 
was  dependent  upon  the  law  of  Illinois  (lex  fori),  and  that  she 
could  not  therefore  be  made  liable  in  an  action  at  law. 

In  Ruhe  v.  Buck,  ^^  a  married  woman  contracted  in  Dakota, 
by  whose  law  she  could  contract  and  sue  and  be  sued  like  a  feme 
sole.  She  owned  certain  real  estate  in  Missouri  which  was  then 
attached  for  the  debt.  By  the  law  of  Missouri,  a  married  woman's 
property  could  not  be  attached.  The  woman  herself  not  being 
within  the  jurisdiction  of  Missouri,  the  question  was  whether 
the  right  to  attach  the  Missouri  property  for  the  Dakota  debt 
was  a  part  of  the  remedy  or  a  substantive  part  of  the  contractual 
obligation.  It  was  held  (some  of  the  judges  dissenting)  that  it 
was  a  matter  of  remedy,  to  be  controlled  by  the  law  of  Missouri 
(lex  fori)." 

"  124  Mo.  178,  25  L.  R.  A.  178. 

^  Though  a  very  close  case,  this  decision  would  seem  to  be  correct  upon  prin- 
ciple. See  ante,  §  180.  But  it  comes  perilously  near  denying  a  remedy  alto- 
gether. Upon  a  married  woman's  contract  executed  in  a  State  where  it  is 
valid,  a  distinction  must  be  drawn  between  the  denial  in  the  forum  of  a  par- 
ticular remedy,  such  as  attachment,  and  the  denial  of  all  remedy.  See  Rich- 
mond V.  R.  R.  Co.,  21  Gratt.  (Va.)  611.  It  would  be  an  absurd  proposition 
for  the  courts  of  the  forum  to  admit  that  a  contract  made  elsewhere  is  to  be 
regarded  as  valid  in  the  forum,  and  then  refuse  to  afford  any  remedy  for  its 
enforcement.  Hence  the  general  rule  is  that  if  a  suit  is  brought  against  a 
married  woman  on  a  contract  validly  executed  elsewhere,  though  by  the  lex 
fori  she  is  more  or  less  incompetent  to  contract  or  be  sued,  the  suit  may  never- 
theless be  maintained  against  her  as  if  she  were  a  feme  sole,  or  as  if  it  were  a 
case  in  which,  under  the  lex  fori,  she  were  competent  to  contract.  See  Gibson 
V.  Sublett,  82  Ky.  596;  Evans  ».  Cleary,  125  Penn.  St.  204,  17  Atl.  440; 
Spearman  v.  Ward,  114  Penn.  St,  634,  8  Atl.  430  ;  Stoneman  v.  R.  R.  Co., 
52  N.  Y.  429.  This  statement  must,  however,  be  somewhat  modified  when 
the  forum  is  also  the  woman's  domicil.  See  ante,  §  72.  The  difficulty  in  Ruhe 
V.  Buck,  supra,  was  that  the  married  woman  was  not  within  the  jurisdiction  of 
the  Missouri  courts,  and  therefore  a  denial  of  the  right  to  attach  her  property 
was  almost  equivalent  to  a  denial  of  all  remedy,  unless  she  were  accidentally 
found  within  the  jurisdiction.  But  this  very  qualification  preyents  it  from 
being  a  denial  of  all  remedy,  and  merely  limits  it  to  a  remedy  in  personam. 


^*  206  MODES   OP   PROCEDURE  —  PARTIES.  509 

It  will  be  remembered  that  where  the  statute  of  a  foreign 
State  creates  a  right  not  penal,  prescribing  no  special  remedy, 
the  right  is  regarded  as  transitory  and  susceptible  of  enforce- 
ment anywhere,  as  in  the  case  of  extraordinary  liabilities  of 
stockholders  or  directors  of  a  corporation.  But  if  special  reme- 
dies are  provided  by  the  same  or  other  statutes  for  the  enforce- 
ment of  the  rights  thus  created,  the  courts  of  other  States  will 
go  no  further  towards  their  enforcement  than  their  own  ma- 
chinery justifies  them  in  going,  with  due  regard  to  justice  and 
convenience." 

§  206.  Modes  of  Procedure  —  Parties  to  the  Suit.  —  It  is 
but  a  corollary  of  what  has  been  already  said,  that  the  lex  fori 
governs  all  matters  relating  to  the  procedure  in  the  trial  of 
causes,  including  the  proper  parties  plaintiff  and  defendant,  the 
process,  pleadings,  and  rules  of  practice,  the  court  wherein  the 
cause  is  to  be  tried,  the  admissibility  and  effect  of  evidence, 
the  incidents  of  the  trial,  and  the  appellate  procedure,  —  in- 
deed, everything  that  pertains  to  the  remedy. 

We  shall  consider  (1)  The  proper  parties  to  the  suit ;  (2)  The 
process,  pleadings,  and  rules  of  practice ;  (3)  Admissibility  and 
effect  of  evidence;   (4)  Incidents  of  the  trial. 

With  respect  to  the  ''proper  law"  governing  who  may  be 
plaintiffs  in  a  suit,  it  may  be  laid  down  as  a  general  proposition 
that  the  lex  fori  determines  the  capacity  of  a  party  to  sue  in  the 
forum.  In  general  all  foreigners  sui  juris,  and  not  otherwise 
disabled  by  the  lex  fori,  may  maintain  an  action  in  the  forum 
to  vindicate  their  rights  or  to  redress  their  wrongs;  and  this  is 
true  whether  the  foreign  plaintiff  be  a  mere  private  person,  a 
corporation,  or  a  sovereign.^ 

Thus  the  lex  fori  determines  whether  a  foreign  married 
woman  shall  sue  in  her  own  name,  by  her  next  friend,  or  with 
her  husband;  *  or  whether  the  assignee  of  a  chose  in  action,  to 
whom  the  equitable  title  thereto  has  been  assigned  under  the 
law  of  the  place  where  the  assignment  occurs,  shall  sue  in  equity 

*•  This  question  is  fully  discussed  ante,  §  10. 

1  Story,  Confl.  L.  §  565  ;   Hullett  v.  King  of  Spain,  1  Dow  &  C.  169 
United  States  v.  Wagner,  L.  R.  2  Ch.  582 ;  The  Sapphire,  11  Wall.  164. 
a  Robinson  v.  Queen,  87  Tenn.  445,  3  L.  R.  A.  214,  216,  11  S.  W.  38. 


510  PROCESS,   PLEADINGS,   AND   PBACTICB.  §  207 

or  at  law ;  or  if  at  law,  whether  in  his  own  name  or  in  the  name 
of  the  assignor  holding  the  legal  title.'  But  if  the  law  of  the 
place  of  assignment  confers  upon  the  assignee  not  only  the 
equitable  but  the  legal  title  to  the  chose  in  action,  the  title  so 
conferred  is  a  matter  of  substantive  right,  not  of  mere  remedy, 
and  is  to  be  controlled  by  the  law  of  the  place  of  the  assignment 
(lex  loci  contractus).  In  this  connection,  the  distinction  must 
not  be  overlooked  between  the  transfer  of  the  legal  title  (inci- 
dentally conferring  upon  the  assignee  the  right  to  sue  at  law  in 
his  own  name)  and  the  transfer  of  the  equitable  title  only,  but 
with  the  special  privilege  of  suing  at  law  in  his  own  name.  The 
latter  relates  to  the  remedy,  and  is  governed  by  the  lex  fori; 
the  former  relates  to  the  obligation  of  the  contract  of  transfer, 
and  is  governed  by  the  lex  loci  contractus.* 

So  also  with  regard  to  the  parties  defendant.  Thus  the  ques- 
tion whether  a  foreign  sovereign  or  corporation  may  be  sued, 
and  if  so  as  to  the  mode  of  procedure,  will  depend  upon  the  lex 
fori.*  Whether  an  infant  defendant  to  a  foreign  cause  of  action 
is  to  be  sued  in  his  own  name,  or  by  next  friend  or  by  guardian, 
is  to  be  determined  by  the  lex  fori,  not  by  the  law  of  the  situs 
of  the  cause  of  action."  Upon  the  same  principle  the  question 
whether  a  married  woman  defendant  may  be  sued  alone,  or  must 
be  joined  with  her  husband,  depends  upon  the  lex  fori.'' 

§  207.  Process,  Pleadings,  and  Rules  of  Practice.  —  The 
nature,  form,  effect,  and  mode  of  execution  of  a  process  to  sum- 
mon a  defendant  will  depend  upon  the  lex  fori,  provided  it  is 
not  violative  of  the  fundamental  principles  of  justice  embraced 

'  Levy  V.  Levy,  78  Penn.  St.  507,  21  Am.  Rep.  35  ;  Leach  v.  Greene,  116 
Mass.  534  ;  Foss  v.  Nuttiug,  14  Gray  (Mass.),  484  ;  Orr  v.  Amory,  11  Mass. 
25 ;  Pearsall  v.  Dwight,  2  Mass.  84,  3  Am.  Dec.  35,  38  ;  Barth  v.  Furnace  Co., 
63  111.  App.  323. 

*  Levy  V.  Levy,  78  Penn.  St.  507,  21  Am.  Rep.  85 ;  Jordan  v.  Thornton, 
2  Eng.  (Ark.)  224,  44  Am.  Dec.  546  ;  ante,  §  164. 

6  Duke  of  Brunswick  v.  King  of  Hanover,  2  H.  L.  Cas.  1  ;  De  Haber  v. 
Queen  of  Portugal,  17  Q.  B.  171 ;  Columbian  Government  v.  Rothschild,  1  Sira. 
94  ;  Bank  of  Augusta  v.  Earle,  13  Pet.  579,  588-589. 

«  Ruhe  V.  Buck,  124  Mo.  178,  25  L.  R.  A.  178,  184. 

'  Robinson  i;.  Queen,  87  Tenn.  446,  3  L.  R.  A.  214,  11  S.  W.  38.  But  sea 
Eraxui  V.  Cleary,  125  Penn.  St.  204,  17  Atl.  440;  Halley  r.  Ball,  66  111.  260. 


§  207  PROCESS,    PLEADINGS,    AND    PRACTICE.  611 

in  the  term  "due  process  of  law."*  There  should  always  be, 
and  in  the  United  States  there  must  be,  such  notice  given  the 
defendant  as  will  properly  notify  him  of  the  pendency  of  the 
suit.  If  there  be  such  notice,  the  form  of  it  and  the  mode  of 
executing  it,  if  valid  by  the  lex  fori,  will  be  valid  and  binding 
everywhere  upon  the  defendant  so  notified.  If  the  process  is 
not  a  sufficient  notice  to  the  defendant  according  to  the  lex  fori, 
and  the  judgment  of  the  court  is  for  that  reason  void  under  that 
law,  it  will  be  of  no  binding  effect  elsewhere.* 

Sometimes  however  the  process  is  not  confined  to  a  mere  sum- 
mons, but  may  extend  to  the  arrest  of  the  defendant's  person. 
If  we  suppose,  for  example,  a  contract  made  in  a  State  where 
arrests  in  civil  cases  are  not  permitted,  or  not  permitted  in  the 
particular  case,  and  suit  to  be  brought  thereon  in  a  State  where 
the  arrest  of  the  defendant  is  permissible,  a  question  may  arise 
whether  this  is  a  matter  pertaining  to  the  remedy  or  to  the  obli- 
gation of  the  contract. 

Applying  the  criterion  already  mentioned,  namely,  the  inquiry 
whether,  if  the  law  governing  the  obligation  of  the  contract  were 
retroactively  altered  so  as  to  be  identical  in  terms  with  the  lex 
fori,  it  would  impair  the  obligation  of  the  contract,  it  would 
seem  quite  clear  that  this  is  a  matter  pertaining  to  the  remedy.' 
This  is  certainly  true,  in  the  case  above  supposed,  if  the  lia- 
bility is  general,  binding  the  promisor  personally  to  perform- 
ance, and  following  his  person  wherever  he  may  be.  The  lex 
fori  is  to  govern.  But  if  the  defendant's  obligation  is,  by  the 
terms  of  his  contract  or  by  the  "proper  law,"  entirely  in  rem, 
extending  to  his  property  merely,  not  to  his  person,  so  as  to 
exclude  any  personal  liability  on  the  part  of  the  defendant,  then 
the  exemption  from  liability  to  arrest,  or  to  being  proceeded 
against  in  personam  in  any  manner,  perhaps  becomes  a  part  of 
his  substantive  rights,  and  hence  might  no  longer  be  controlled 
by  the  lex  fori.* 

1  See  ante,  §  85. 

2  Storv,  Confl.  L.  §  568 ;  Whart  Confl.  L.  §§  747-760 ;  Dicey,  Confl.  L. 
711. 

«  Ante,  §  180. 

*  Story,  Confl.  L.  §§  568,  569,  571,  572 ;  Melan  v.  Fitz  James,  1  Bos.  A 


512  PEOCESS,  PLEADINGS,   AND   PRACTICE.  §  207 

In  Garr  v.  Stokes,^  the  defendant  was  proceeded  against  ia 
^ew  Jersey  upon  a  capias.  He  insisted  that  by  the  laws  of 
Kew  York,  where  the  contract  was  made,  he  was  exempt  from 
arrest.  But  the  court  said:  "  It  is  not  necessary  to  spend  any 
time  to  show  the  futility  of  such  an  objection.  This  is  a  ques- 
tion of  lex  fori,  and  not  of  lex  loci  contractus." 

In  Melan  v.  Fitz  James,  ^  a  bond  was  executed  in  France  and 
sued  on  in  England,  which  bond  by  the  French  law  was  understood 
to  bind  the  property  only,  and  not  the  person,  of  the  obligor. 
The  defendant,  being  found  in  England,  was  arrested  according 
to  the  law  of  England,  and  applied  for  his  discharge  on  the 
ground  that  the  law  of  France  gave  no  such  personal  remedy, 
but  only  a  remedy  against  the  property.  Eyre,  L.  C.  J.,  said: 
**If  it  appears  that  this  contract  creates  no  personal  obligation, 
and  that  it  could  not  be  sued  upon  as  such  by  the  laws  of  France, 
on  the  principle  of  preventing  arrests  so  vexatious  as  to  be  an 
abuse  of  the  process  of  the  court,  there  seems  a  fair  ground  on 
which  the  court  may  interpose  to  prevent  a  proceeding  so  op- 
pressive as  a  personal  arrest  in  a  foreign  country  at  the  com- 
mencement of  a  suit  in  a  case  which,  so  far  as  one  can  judge  at 
present,  authorizes  no  proceeding  against  the  person  in  the 
country  in  which  the  transaction  passed.  If  there  could  be 
none  in  France,  in  my  opinion  there  can  be  none  here.  I  can- 
not conceive  that  what  is  no  personal  obligation  in  the  country 
in  which  it  arises  can  ever  be  raised  into  a  personal  obligation 
by  the  laws  of  another.  If  it  be  a  personal  obligation  there  it 
must  be  enforced  here  in  the  mode  pointed  out  by  the  law  of 
this  country.  But  what  the  nature  of  the  obligation  is  must  be 
determined  by  the  law  of  the  country  where  it  was  entered  into; 
and  then  this  country  will  apply  its  own  law  to  enforce  it." 

So  also  the  lex  fori  will  control  the  sufficiency  and  effect  of 
an  appearance  by  the  defendant.     Thus,  in  Jones  v.  Jones,'  a 

Pul.  138  ;  De  La  Vega  v.  Vianna,  1  B.  &  Ad.  284,  20  E.  C.  L.  387  ;  Wood  v. 
Malin,  10  N.  J,  L.  208 ;  Garr  v.  Stokes,  16  K  J.  L.  404,  405. 

6  16  N.  J.  L.  404,  405.  See  Bullock  w.  Bullock,  61  N.  J.  Eq.  444,  27  AtL 
435,  438. 

«  1  Bos.  &  Pul.  142. 

T  108  N.  Y.  415,  486-427. 


§  208  EVIDENCE  —  PRESUMPTIONS  —  TRIAL.  613 

defendant  to  a  divorce  suit  in  Texas  resided  in  New  York,  and 
was  there  served  with  process.  He  appeared  specially  in  order 
to  deny  the  jurisdiction  of  the  Texas  court,  and  that  court  over- 
ruling his  objection  he  proceeded  to  file  an  answer.  The  Texas 
court  found  against  him,  and  he  afterwards  attacked  the  Texas 
decree  in  New  York  on  the  ground  that  the  Texas  court  had  no 
jurisdiction  of  his  person.  By  the  law  of  New  York,  a  special 
appearance  to  plead  to  the  court's  jurisdiction,  even  though 
followed,  when  overruled,  by  an  answer,  did  not  give  the  trial 
court  jurisdiction.  By  the  law  of  Texas  it  did.  It  was  held 
that  the  Texas  law  should  control,  and  that  the  Texas  court 
had  acquired  jurisdiction  of  the  defendant  by  his  answer  for  all 
the  purposes  of  the  suit. 

The  lex  fori  also  controls  with  respect  to  the  pleadings  in  the 
suit  and  the  rules  of  practice,  as,  for  example,  whether  the  plead- 
ings are  to  be  formal  or  informal,  oral  or  written,  by  way  of 
declaration  or  complaint,  under  the  common  law  or  code  sys- 
tem, whether  to  be  supported  by  affidavit  or  unverified,  as  to 
the  sufficiency  of  the  allegations,  the  mode  of  pleading  defenses, 
etc.*  So  questions  relating  to  the  effect  of  a  material  variance, 
amendments  of  pleadings,  the  filing  of  sereral  defenses  at  the 
same  time,  the  forms  of  the  general  issues,  the  evidence  which 
may  be  given  thereunder,  etc.,  are  all  to  be  determined  by  the 
lex  fori.9 

§  208.  Admissibility  of  Xhridence  —  Presumptions  of  Law 
—  Incidents  of  the  Trial.  —  The  admissibility  of  particular 
evidence  in  a  suit  is  to  be  governed  in  general  by  the  lex  fori, 
for  it  partakes  merely  of  the  remedy.     And  this  applies  both  to 

8  Don  V.  Lippmann,  5  CI.  &  F.  1,  14,  15  ;  Pritchard  v.  Norton,  106  U.  S. 
124,  130  et  seq.  ;  Hubbell  v.  Land  &  Imp.  Co.,  95  Tenn.  585,  32  S.  W.  965- 
966  ;  Lyons  v.  R.  R.  Co.  (Tex.),  36  S.  W.  1007  ;  Harrison  v.  Edwards,  12  Vt. 
648,  36  Am.  Dec.  364,  366 ;  Lynch  v.  Postlethwaite,  7  Mart.  (La.)  69, 12  Am. 
Dec.  495,  500.  But  if  the  question  is  not  as  to  the  proper  mode  of  pleading  a 
defense,  but  as  to  the  effect  of  the  facts  pleaded,  this  is  in  general  to  be  deter- 
mined by  the  law  of  the  place  where  those  facts  transpire.  See  Vermont  Bank 
V.  Porter,  5  Day  (Conn.),  316,  5  Am.  Dec.  157;  post,  §  211. 

9  See  Whart.  Confl.  L.  §§  788,  789  ;  Bank  v.  Donnally,  8  Pet.  361,  369 
et  seq.  ;  McAllister  v.  Smith,  17  111.  328,  65  Am.  Dec.  651. 

33 


614  EVIDENCE  —  PRESUMPTIONS  —  TRIAL.  §  208 

the  kind  and  the  amount  of  evidence  necessary  to  prove  a  cause 
of  action.^ 

In  The  City  of  Carlisle.^  it  wa8  held  that  a  clause  in  the 
British  Shipping  Act  of  1854,  making  certain  official  entries 
in  log-hooks  competent  evidence  in  all  courts,  did  not  make 
them  so  in  suits  hrought  in  other  countries. 

In  Downer  v.  Chesebrough,'  an  action  was  brought  in  Con- 
necticut against  the  indorser  of  a  note,  made  and  indorsed  in 
blank  in  New  York,  where  it  was  made  payable.  The  indorser 
attempted  to  show  that  he  had  indorsed  it  to  the  holder  only  for 
collection,  and  that  there  was  a  contemporaneous  parol  agree- 
ment to  that  effect.  By  the  law  of  New  York  a  parol  contract 
could  not  be  introduced  in  evidence  to  alter  the  legal  import  of 
a  blank  indorsement.  By  the  law  of  Connecticut  (lex  fori)  it 
could  be.     The  lex  fori  was  held  to  govern. 

In  Hoadley  v.  Transportation  Co.,*  a  bill  of  lading  for  goods 
was  given  by  a  carrier  in  Illinois,  the  goods  to  be  shipped  to 
Massachusetts.  The  goods  were  destroyed  by  fire  in  Chicago, 
from  responsibility  for  which  the  bill  of  lading  exempted  the 
carrier.  It  was  urged  by  the  shipper  that  he  had  never  assented 
to  the  terms  of  the  contract.  By  the  law  of  Massachusetts,  the 
mere  receipt  of  the  bill  of  lading  by  the  consignor  without  dis- 
sent constituted  an  assent  to  its  terms.  By  the  law  of  Illinois, 
an  actual  assent  was  required.  The  Massachusetts  court  held 
that  this  was  a  mere  matter  of  evidence  to  be  determined  by  the 
law  of  Massachusetts  (lex  fori). 

But  presumptions  which  are  conclusive,  not  merely  prima 
facie,  in  general  are  part  of  the  substantive  rights  of  the 
parties,  not  matters  of  evidence  or  remedy  merely,  and  there- 
fore are  regulated  by  the   law  properly  governing  those  sub- 

1  Pritchard  v.  Norton,  106  U.  S.  124,  130  ;  Scudder  v.  Bank,  91  U.  S.  406 ; 
Bowles  V.  Field,  78  Fed.  742  ;  McAllister  v.  Smith,  17  111.  328,  65  Am.  Dec 
651 ;  The  City  of  Carlisle,  39  Fed.  807.  But  see,  as  to  contracts  required  to 
be  in  writing  under  the  statute  of  Frauds  of  the  forum,  post,  §  210. 

«  39  Fed.  807. 

»  36  Conn.  39,  4  Am.  Rep.  29.  See  Baxter  Nat.  Bank  v.  Talbot,  154  Masa 
213,  28  N.  E.  163  ;  ante,  §  183. 

*  115  Mass.  804,  15  Am.  Rep.  106.     See  ante,  §  151. 


§  208  EVIDENCE  —  PRESUMPTIONS  —  TRIAL.  515 

stantive  rights,  not  by  the  lex  fori.  Thus,  if  a  contract  under 
seal  be  executed  in  one  State,  by  whose  law  the  seal  conclu- 
sively imports  a  valuable  consideration,  while  suit  is  brought 
thereon  in  a  State  where  the  seal  has  no  such  effect,  the  law  of 
the  former  State  will  control.^  So  it  has  been  held  in  Min- 
nesota that  a  law  of  Wisconsin,  making  a  tax-deed  after  the 
expiration  of  two  years  conclusive  evidence  of  the  validity  of 
the  tax-title  to  lands  in  Wisconsin,  should  be  given  the  same 
effect  in  Minnesota.' 

The  lex  fori  also  governs  other  incidents  of  the  trial,  such  as 
motions  for  a  continuance  or  for  a  new  trial,  motions  in  arrest 
of  judgment,  and  the  relative  priority  of  claims,''  And  the  rate 
of  interest  for  which  judgment  will  be  given,  not  as  part  of  a 
contract  (for  that  will  be  governed  by  the  lex  solutionis  '),  but 
by  way  of  damages  for  the  breach  of  a  contract,  or  in  recovering 
the  value  of  converted  goods,  will  be  regulated  by  the  lex 
fori.' 

And  in  general  questions  as  to  the  elements  entering  into  the 
quantum  of  damages  and  the  mode  in  which  they  shall  be  paid, 
ds  well  as  the  effect  of  matter  arising  after  the  judgment  which 
may  be  deemed  a  satisfaction  or  aggravation  of  damages,  are  to 
be  determined  by  the  lex  fori,  as  pertaining  to  the  remedy." 

Thus,  in  Evey  v.  E.  R.  Co.,^^  the  plaintiff  was  injured  in 
Mexico  by  the  negligence  of  the  defendant  railroad  company, 
and  brought  suit  in  Texas.  By  the  law  of  Mexico  he  was  per- 
mitted to  recover  additional  damages  for  injuries  developing 
after  the  first  suit,  and  also  to  recover  an  "extraordinary  in- 
demnity" in  consideration  of  his  "social  position."  It  was 
held  that  these  matters  related  to  the  remedy,  to  be  controlled, 
not  by  the  law  of  Mexico  (lex  delicti),  but  by  the  law  of  Texas 
(lex  fori). 

6  Pritchard  v.  Norton,  106  U.  S,  124,  135  ;  ante,  §  177. 

6  Bronson  v.  Lumber  Co.,  44  Minn.  348,  46  N.  W.  570. 

7  Story,  Confl.  L.  §§  323,  637 ;  Harrison  ».  Sterry,  5  Cr.  289,  298. 

8  Ante,  §  184. 

»  Goddard  v.  Foster,  17  WalL  123 ;  Carson  v.  Smith,  133  Mo.  606,  34  S.  W 
855,  858  ;  ante,  §  198.     But  see  Peck  v.  Mayo,  14  Vt.  33,  39  Am.  Dec.  205 
w  See  ante,  §  198.  ^  62  U.  S.  App.  118,  81  Fed.  294- 


616  EXEMPTIONS.  §  209 

Even  the  very  foreign  law  itself  that  governs  or  may  govern 
the  substantive  rights  of  the  parties  acquired  abroad,  must  be 
pleaded  and  proved  in  the  courts  of  the  forum  in  accordance 
with  the  lex  fori.^^ 

§  209.  Exemptions.  —  The  principles  by  which  to  ascertain 
the  ''proper  law"  governing  homestead  and  other  exemptions 
of  property  from  execution  or  attachment  are  at  present  in  a 
state  bordering  upon  chaotic  confusion.  Most  of  the  statutes 
creating  such  exemptions  apply  only  to  residents,  so  that  the 
property  of  non-residents,  if  sought  to  be  subjected  under  execu- 
tion or  attachment,  is  not  within  their  purview. 

The  doctrine  probably  recognized  most  generally  in  the 
United  States  is  that  statutes  of  this  character  are  mere  mat- 
ters of  local  policy,  having  no  exterritorial  force;  that  they 
relate  simply  to  the  remedy;  and  therefore  that  the  lex  fori 
is  in  all  cases  to  determine  what  exemptions,  if  any,  are  to  be 
allowed.^  But  it  is  by  means  apparent  on  the  face  of  the  mat- 
ter that  exemptions  of  this  sort  pertain  merely  to  the  remedy, 
rather  than  to  the  obligation  of  the  contract  against  which 
the  exemption  is  claimed.  Nor  is  such  always  the  case  (it  is 
believed). 

As  has  been  already  repeatedly  shown,  the  criterion  by  which 
to  determine  whether  a  particular  matter  relates  to  the  obliga- 
tion of  a  contract  or  to  the  remedy  is  to  inquire  whether,  if  the 
contract  were  deprived  of  that  element  by  retrospective  legisla- 
tion, tJie  obligation  of  the  contract  would  be  impaired.  If  so, 
the  matter  should  be  regarded  as  part  of  the  obligation  of  the 
contract,  not  as  part  of  the  remedy  merely.' 

"  Story,  Confl.  L.  §  637,  note  (a).  See  post,  §§  212  et  seq. 
1  Boykin  v.  Edwards,  21  Ala.  264;  Kyle  r.  Montgomery,  73  Ga.  387; 
Mineral  Point  R.  R.  Co.  v.  Barron,  83  111.  365  ;  Newell  v.  Haden,  8  la.  140  ; 
Burlington,  etc.  R.  R.  Co.  w.  Thompson,  81  Kan.  180,  47  Am.  Rep.  497  ; 
Morgan  v.  Neville,  74  Penn.  St.  52 ;  Stevens  v.  Brown,  20  W,  Va.  450 ;  Com- 
mercial Nat.  Bank  v.  R.  R.  Co.,  45  Wis.  172  ;  Lyon  v.  Callopy,  87  la.  567, 
43  Am.  St.  Rep.  396  ;  Atchison,  etc.  R.  R  Co.  v.  Maggard,  6  Colo.  App.  85, 
39  Pac  985  ;  Harwell  v.  Sharp,  85  Ga.  124,  21  Am.  St.  Rep.  149  ;  Wabash 
R.  R.  Co.  r.  Dougan,  142  IlL  248,  34  Am.  St  Rep.  74 ;  Barker  v.  Brow-^ 
(Ky.),  33  S.  W.  833. 
3  See  ante,  §§  180,  18S. 


§  209  EXEMPTIONS.  617 

In  Edwards  v.  Kearzey,*  the  United  States  Supreme  Court 
decided  that  laws  materially  increasing  exemptions,  made  ap- 
plicable to  pre-existing  debts,  impaired  their  obligation  in  re- 
spect to  the  rights  of  the  creditor,  and  were  void  as  contrary  to 
the  federal  constitution. 

On  the  other  hand,  it  is  equally  well  settled  that,  so  far  as 
the  debtor  is  concerned,  exemptions  are  mere  privileges  granted 
him  and  his  family,  and  may  be  repealed  at  any  time,  without 
impairing  any  vested  rights  of  his,  and  a  fortiori  without  im- 
pairing the  obligation  of  any  contract.'* 

If  therefore  the  criterion  above  mentioned  be  applied  to  ex- 
emptions of  property  from  execution  or  attachment,  it  will  be 
seen  that  it  is  a  part  of  the  obligation  of  the  debtor's  contract 
that  his  exemptions  shall  not  be  materially  increased,  but  it  is 
no  part  of  the  obligation  of  the  contract  that  they  shall  not  be 
diminished  or  taken  away.  According  to  this  view,  if  the  law 
governing  the  obligation  of  the  contract  should  permit  a  certain 
exemption,  while  the  law  of  the  forum  permits  a  greater  amount 
of  property  to  be  exempted,  the  former  law  should  control.  If 
the  lex  fori  authorizes  a  lesser  exemption  to  the  debtor,  or  no 
exemption  at  all,  the  question  relates  to  the  remedy  only,  not  to 
the  obligation  of  the  contract,  and  should  be  governed  by  the 
lex  fori. 

If  this  conclusion  is  correct,  the  question  still  remains,  what 
law  shall  govern  the  obligation  of  the  contract  in  respect  to 
exemptions  in  cases  where  the  exemption  forms  part  of  its  obli- 
gation ?  In  a  previous  section  it  has  been  shown  that  the 
"proper  law  "  governing  the  obligation  of  a  contract  (exclusive 
of  its  validity)  is  the  law  in  the  minds  of  the  parties  at  the 
time  the  contract  is  entered  into;  and  in  the  absence  of  other 
evidence  of  the  parties'  intention,  we  must  look  to  the  law  of 
the  situs  of  that  particular  element  of  obligation  which  is  under 
investigation.*     The  element  of  obligation  under  investigation 

»  96  U.  S.  595.  See  also  Gunn  v.  Barry,  15  WalL  610 ;  The  Homestead 
Cases,  22  Gratt.  (Va.)  266. 

*  Massey  v.  Womble,  69  Miss.  347, 11  So.  188  ;  Bull  w.  Conroe,  13  Wis.  288 1 
Cooley,  Const.  Lim.  383.     See  Grand  Lodge  r.  New  Orleans,  166  TJ.  S.  143. 

6  Ante,  §  181. 


618  EXEMPTIONS.  §  209 

in  this  case  is  that  relating  to  the  mode  of  enforcing  a  judicial 
proceeding  against  the  debtor.  The  law  of  the  situs  of  that 
judicial  proceeding  therefore  is  the  law  "  in  the  minds  of  the 
parties  "  as  governing  the  exemptions  to  be  allowed.  There  is 
only  one  place  which  might,  with  any  degree  of  probability,  be 
regarded  at  the  time  of  the  contract  as  the  place  where  the  con- 
tract is  to  be  enforced  in  case  of  non-performance,  namely,  the 
debtor's  domicil.  Hence  the  parties  will  generally  be  presumed 
to  have  the  law  of  the  debtor's  domicil  in  mind  as  governing 
the  exemptions  of  property  to  be  allowed  the  debtor,  and  that 
law  should  control  in  those  cases  where  the  exemptions  are  part 
of  the  obligation  of  the  debtor's  contract. 

This  reasoning  leads  then  to  the  conclusion  that  if  the  law  of 
the  debtor's  domicil  permits  a  less  exemption  than  the  lex  fori, 
the  law  of  that  domicil  should  control;  while  the  lex  fori  will 
govern,  if  the  lex  domicilii  of  the  debtor  authorizes  a  greater 
exemption  than  the  lex  fori.® 

Although  this  is  believed  upon  principle  to  be  the  correct 
doctrine,  no  decision  has  been  found  to  go  so  far.  The  ten- 
dency of  some  of  the  cases  has  been  to  recognize  the  exemptions 
as  dependent,  in  part  at  least,  upon  the  obligation  of  the  con- 
tract and  upon  the  law  of  the  debtor's  domicil  rather  than  the 
lex  fori,  but  they  do  not  distinguish  between  the  increase  of 
the  exemption  in  the  forum  and  its  decrease  or  total  abolition 
there.' 

•  This  rnle  seems  to  operate  hardly  upon  the  debtor,  but  it  is  a  no  harder 
case  (though  more  frequent)  than  that  presented  by  the  rule  of  constitutional 
law,  upon  which  this  doctrine  is  based,  which  declares  that  the  legislature  of 
a  State  cannot  retrospectively  increase  the  debtor's  exemption,  though  it  may 
retrospectively  deprive  him  of  the  exemption  altogether.  As  a  matter  of  fact 
almost  all  the  actual  cases  arise  under  the  second  branch  of  the  rule,  and  the 
lex  fori  is  the  "  proper  law ;  "  or  else  the  forum  is  identical  with  the  debtor's 
domicil  ;  so  that  the  lex  fori  will  usually  control  in  any  event. 

T  Singer  Mfg.  Co.  v.  Fleming,  39  Neb.  679,  42  Am.  St.  Rep.  613  ;  Drake 
V.  R.  R.  Co.,  69  Mich.  168,  13  Am.  St.  Rep.  382  ;  111.  Cent.  R.  R.  Co.  v. 
Smith,  70  Miss.  344,  35  Am.  St.  Rep.  651  ;  Mo.  Pac.  R.  R.  Co.  v.  Sharitt,  43 
Kan.  375,  19  Am.  St.  Rep.  143  ;  Kansas  City,  eU;.  R.  R.  Co.  v.  Cunningham, 
7  Kan.  App.  47,  51  Pac.  972  ;  Mason  r.  Beebee,  46  Fed.  556.  See  La  Sella  v, 
Woolery,  14  Wash.  70,  44  Pac.  115,  32  L.  R.  A-  75. 


§  209  EXEMPTIONS.  619 

On  the  other  hand,  with  the  same  indifference  as  to  whether 
the  provisions  of  the  lex  fori  call  for  an  increase  or  diminution 
in  the  amount  of  the  exemption  authorized  by  the  law  of  the 
debtor's  domicil,  perhaps  the  majority  of  the  decisions  hold  that 
it  is  in  all  cases  a  matter  of  remedy,  to  be  controlled  by  the 
lex  fori,  regardless  of  the  law  of  the  debtor's  domicil.' 

But  whatever  law  is  selected  by  the  courts  of  the  forum  in  a 
particular  case  for  their  guidance  in  determining  what  property 
within  their  jurisdiction  is  exempt  from  attachment  or  execu- 
tion (whether  the  law  of  the  forum  or  the  law  of  the  debtor's 
domicil  or  of  some  third  State),  there  can  be  no  doubt  of  the 
power  of  the  forum  to  make  such  provisions  touching  the  ex- 
emption of  any  property  within  its  limits  as  it  may  see  fit. 
Hence  the  decision  of  the  courts  of  the  forum,  having  jurisdic- 
tion of  the  res  in  the  particular  case,  is  conclusive  and  binding 
everywhere  as  between  the  parties  to  the  litigation,  under  the 
"full  faith  and  credit"  clause  of  the  federal  constitution.* 

If  therefore  the  courts  of  the  forum  (and  situs  of  the  property 

»  Mooney  v.  R.  R.  Co.,  60  la.  346,  14  N.  W.  343 ;  Lyon  v.  Callopy,  87  la. 
567,  43  Am.  St.  Rep.  396  ;  Burlington,  etc.  R.  R.  Co.  v.  Thompson,  31  Kan. 
180,  47  Am.  Rep.  497 ;  Morgan  v.  Neville,  74  Penn.  St.  52,  57-58  ;  Stevens 
V.  Brown,  20  W.  Va.  450  ;  Carson  v.  R.  R.  Co.,  88  Tenn.  646,  17  Am.  St. 
Rep.  921  ;  East  Tenn.  R.  R.  Co.  v.  Kennedy,  83  Ala.  462,  3  Am.  St.  Rep.  755  ; 
Wabash  R.  R.  Co.  v.  Dougan,  142  111.  248,  34  Am.  St.  Rep.  74. 

'  It  will  be  remembered  that  when  the  question  arises  upon  a  garnishment 
proceeding  the  courts  are  much  divided  as  to  whether  the  debt  attached  or 
seized  under  execution  has  its  situs  with  the  garnishee  or  with  his  creditor, 
the  correct  view  being  that  for  this  purpose  the  actual  situs  of  the  debt  is  with 
the  garnishee  wherever  he  may  be  sued.  Ante,  §  125.  In  Mason  v.  Beebee, 
46  Fed.  556,  the  rather  extraordinary  and  inconsistent  ground  is  taken,  that 
while  the  debt  is  actually  with  the  garnishee  for  the  purpose  of  jurisdiction, 
so  as  to  permit  it  to  be  attached  or  seized,  it  must  at  the  same  time  be  regarded 
as  at  the  domicil  of  the  garnishee's  creditor  for  the  purpose  of  determining  the 
exemptions  to  be  applied.  As  a  matter  of  fact  (it  is  submitted),  the  court 
erred  in  supposing  that  the  situs  of  the  property  sought  to  be  subjected  has 
anything  to  do  with  the  matter  of  exemptions,  save  only  in  that,  as  the  pro- 
ceeding to  seize  the  property  must  be  in  rem,  the  situs  of  the  property  is 
also  the  situs  of  the  remedy.  The  question  must  depend,  upon  principles 
above  mentioned,  either  upon  the  situs  of  the  remedy  or  the  situs  of  the 
obligation  of  the  contract  for  the  enforcement  of  which  the  remedy  is  applied. 


520  EXEMPTIONS.  §  209 

sought  to  be  subjected)  determine  that  the  lex  fori  governs  as  to 
exemptions,  whether  or  not  that  be  the  "proper  law"  under  the 
rules  of  private  international  law,  the  decision  is  conclusive 
everywhere ;  and  though  it  denies  to  the  debtor  exemptions  to 
which  he  would  be  entitled  under  the  law  of  his  domicil,  it  is  a 
complete  defense,  even  in  his  domicil,  to  a  suit  brought  by  him 
against  the  garnishee  to  recover  the  exempted  property  or  its 
value.  ^** 

But  it  does  not  necessarily  follow  that  the  judgment  will  be 
conclusive  in  the  courts  of  the  debtor's  domicil  upon  a  suit 
brought  by  the  debtor  against  the  attaching  or  execution  cred- 
itor for  the  amount  of  the  exemption  allowed  by  the  law  of  the 
debtor's  domicil.  Whether  or  not  the  judgment  will  have  this 
effect  in  a  suit  of  this  kind  will  depend  upon  whether  the  courts 
of  the  first  forum  have  adopted  the  "proper  law"  in  deter- 
mining the  exemption  rights  of  the  parties.  Thus,  in  Singer 
Mfg.  Co.  V.  Fleming,  ^^  a  corporation  was  garnished  in  Iowa 
for  a  debt  due  to  a  debtor  residing  in  Nebraska,  where  the  plain- 
tiff in  the  garnishment  process  also  resided.  By  the  law  of 
Nebraska  the  debt  due  by  the  garnishee  was  exempt  from  gar- 
nishment; by  the  law  of  Iowa,  the  owner  of  the  debt  being  a  non- 
resident, it  was  not  exempt.  The  Iowa  court  held  that  the  Iowa 
law  (lex  fori)  should  control.  In  a  subsequent  suit  in  Nebraska 
by  the  debtor  against  the  garnishment  plaintiff  to  recover  the 
money  thus  obtained  under  the  decision  of  the  Iowa  court,  the 
Nebraska  court,  conceiving  (erroneously)  that  the  Iowa  court 
had  not  enforced  the  "proper  law  "  (which  the  Nebraska  court 
believed  to  be  the  law  of  Nebraska,  the  debtor's  domicil),  held 
that,  while  the  Iowa  judgment  would  be  a  complete  defense  in 
Nebraska  in  a  suit  against  the  garnishee,  it  was  no  defense 
there  in  a  suit  against  the  garnishment  plaintiffP 

10  Singer  Mfg.  Co.  v.  Fleming,  39  Neb.  679,  42  Am.  St,  Bep.  613 ;  Chicago, 
etc.  E.  R.  Co.  V.  Moore,  31  Neb.  629,  28  Am.  St.  Rep.  534;  East  Tenn.  R.  R. 
Co.  V.  Kennedy,  83  Ala.  462,  3  Am.  St.  Rep.  755  ;  Carson  v.  R.  R.  Co.,  88 
Tenn.  646,  17  Am.  St.  Rep.  921 ;  Morgan  v.  Neville,  74  Penn.  St.  52,  57-58. 

u  39  Neb.  679,  42  Am.  St.  Rep.  613. 

12  There  is  some  reason  to  question  whether  this  decision  does  not  contra- 
vene  the  *'  full  faith  and  credit "  clause  of  the  federal  constitution,  and  does 


$  210  LIMITATIONS  —  STATUTE  OF  FRAUDS.  521 

Nor  does  it  follow  that  the  mere  fact  that  such  a  garnishment 
proceeding  is  pending  in  another  State  will  deprive  the  courts 
of  the  debtor's  domicil  of  jurisdiction  to  entertain  an  action 
against  the  garnishee  by  the  garnishment  defendant.^' 

It  has  also  been  held,  with  doubtful  propriety,  that  if  the 
creditor  is  domiciled  in  the  same  State  with  the  debtor,  he  may 
be  enjoined  by  the  courts  of  the  common  domicil  from  suing  the 
latter  in  another  State,  with  the  design  of  evading  the  domi- 
ciliary law  touching  exemptions." 

§  210.  Certain  Defenses,  Matters  of  Remedy  —  Statute  of 
Ldmitations  —  Statute  of  Frauds.  —  Most  of  the  defenses  which 
may  be  made  to  an  action  upon  a  foreign  contract  or  other  trans- 
action relate  to  the  substantive  rights  or  liabilities  of  the  par- 
ties, and  are  governed  by  the  law  of  the  situs  of  the  transaction. 
But  there  are  certain  defenses  which  have  their  origin  in  the 
fact  that  the  law,  while  admitting  the  existence  of  the  cause  of 
action,  for  one  reason  or  another  has  prohibited  an  action  to 
be  brought  thereon.  Such  are  usually  held  to  be  the  defenses 
founded  upon  the  statute  of  limitations  and  the  statute  of  Frauds, 
in  cases  where  such  statutes  provide  that  "wo  action  shall  be 
brought  "  upon  the  transactions  embraced  by  their  terms. 

This  is  the  form  usually  adopted  in  the  case  of  statutes  of 
limitations,  and  there  can  be  no  question  but  that  it  is  a  matter 

not  conflict  with  Green  v.  Van  Buskirk,  5  Wall.  307.  But  it  is  believed  that 
it  does  not,  and  that  it  more  closely  resembles  Homthall  v.  Burwell,  109  N.  C. 
10,  13  S.  E.  721.  Both  of  these  cases  have  been  diacossed  in  a  previoos  sec* 
tion.     Ante,  §  132. 

18  lU.  Cent.  R.  R.  Co.  v.  Smith,  70  Miss.  344,  35  Am.  St.  Rep.  651 ;  Mo. 
Pac.  R.  R.  Co.  V.  Sharitt,  43  Kan.  375,  19  Am.  St.  Rep.  143.  But  comity 
demands  that  whichever  proceeding  is  first  brought  to  judgment  should 
operate  as  a  complete  defense  to  the  other  suit.  See  Chicago,  etc.  R.  R.  Co. 
V.  Sturm,  174  U.  S.  710. 

"  Morton  v.  Hull,  77  Tex.  13  S.  W.  849.  See  Harwell  v.  Sharp,  85  G». 
124,  11  S.  E.  561  ;  Mason  v.  Beebee,  46  Fed.  556.  In  a  very  recent  case,  the 
Missouri  court  held  that  a  Missouri  statute  prohibiting  creditors  from  sending 
claims  against  residents  of  Missouri  to  other  jurisdictions  to  be  sued  upon 
for  the  purpose  of  evading  the  Missouri  exemptions,  was  unconstitutional. 
Whether  or  not  this  decision  is  sound,  it  shows  the  impropriety  of  tha 
arbitrary  granting  of  injunctions  in  such  cases  by  the  coui"ts,  withoui  special 
authority.     In  re  Flukes  (Mo.),  57  S.  W.  545. 


522  LIMITATIONS  —  STATUTE  OP  FRAUDS.  §  210 

pertaining  essentially  to  the  remedy,  and  not  to  the  obliga- 
tion, of  the  defendant ;  for  (applying  the  criterion  already  de- 
Bcribed)  a  retrospective  statute,  either  adding  to  or  diminishing 
the  period  within  which  a  suit  may  be  brought  upon  a  con. 
tract,  does  not  impair  its  obligation,  provided  a  reasonable 
period  is  permitted  the  promisee  within  which  to  sue.^  Hence 
in  general  the  rule  of  private  international  law  is  that  the  lex 
fori  must  control  the  period  within  which  the  action  is  to  be 
brought.'^ 

And  this  applies  not  only  to  the  terms  of  the  statute,  but  to 
the  incidents  connected  therewith.  Thus,  it  has  been  held  that 
the  effect  of  partial  payments  as  interrupting  the  running  of  the 
statute  of  limitations  upon  a  contract  is  to  be  governed  by  the 
lex  fori.*  And  so  it  is  with  regard  to  the  effect  of  a  written 
acknowledgment  of  the  claim.* 

It  may  be  observed  in  passing  that  a  judgment  for  the  defend- 
ant upon  a  plea  of  the  statute  of  limitations  will  not  prevent 
another  suit  upon  the  same  transaction  elsewhere.* 

So  far  we  have  supposed  the  statute  of  limitations  to  be  in  the 
usual  form,  merely  prohibiting  an  action  to  be  brought  after  a 
certain  period.  The  claim  or  debt  is  not  extinguished  by  the 
termination  of  the  period  named  in  the  statute;  it  remains  in- 
tact.    The  only  effect  of  such  a  statute  is  to  prevent  an  action 

1  Bell  V.  Morrison,  1  Pet.  351  ;  Koshkonong  v.  Barton,  104  U.  S.  668  ; 
Wheeler  v.  Jackson,  137  U.  S.  245  ;  Hart  v.  Bostwick,  14  Fla.  162  ;  Ludwig 
V.  Steward,  32  Mich.  27.  See  Munn  v.  Illinois,  94  U.  S.  113,  134.  For  the 
criterion,  see  ante,  §  180. 

2  Story,  Confl.  L.  §§  576,  577  et  seq. ;  Bank  v.  Donnally,  8  Pet.  361  ; 
Pritchard  v.  Norton,  106  U.  S.  124,  130  ;  Burgett  v.  Williford,  56  Ark.  187, 
19  S.  W.  750;  Johnston  v.  Railway  Co.,  50  Fed.  886;  Great  Western  Tel. 
Co.  V.  Purdy,  162  U.  S.  329,  339.  This  rule  applies  also  where  the  cause  of 
action  is  a  foreign  judgment.  See  Fauton  v.  Middlebrook,  50  Conn.  44  ; 
Bauserman  v.  Charlott,  46  Kan.  480,  26  Pac.  1051  ;  Rice  v.  Moore,  48  Kan. 
590,  30  Pac.  10  ;  Ambler  v.  Whipple,  139  111.  311,  28  N.  E.  841. 

8  Obear  v.  Bank,  97  Ga.  587,  33  L.  R.  A.  384. 

*  See  Walsh  v.  Mayer,  111  U.  S.  31. 

'  Bank  v.  Donnally,  8  Pet.  361.  And  by  parity  of  reason  the  same  is  true 
in  case  of  a  judgment  for  defendant  upon  the  plea  that  the  contract  sued  upon 
is  not  in  writing  under  the  statute  of  Frauds  of  the  forum,  or  any  other  defense 
not  going  to  the  merits  of  the  claim. 


§  210  LIMITATIONS  —  STATUTE  OF  FRAUDS.  528 

upon  the  claim  after  that  period  in  the  State  where  the  statute 
is  enacted.  It  can  have  no  effect  elsewhere.  Such  is  usually 
the  effect  of  the  statute  with  regard  to  actions  to  enforce  a  chose 
in  action. 

But  if  we  suppose  that  the  claim  is  rendered  void  after  a  cer- 
tain period,  not  merely  that  an  action  therefor  is  prohibited  to 
be  brought,  we  are  confronted  with  a  very  different  question. 
In  such  cases  the  statute  does  not  affect  the  remedy  merely,  but 
goes  to  the  substantive  rights  of  the  parties  wherever  those 
rights  are  within  its  influence.  Substantive  rights  are  to  be 
governed  by  the  law  of  the  situs  of  the  transaction  under  which 
they  arise,  not  by  the  law  of  the  situs  of  the  remedy.  The  pre- 
scription acts  found  in  some  of  the  European  States  are  of  this 
character.* 

Other  examples  of  the  same  principle  may  be  found  in  regard 
to  the  effect  of  adverse  possession  of  specific  personal  property, 
for  the  period  prescribed  by  the  statute  of  limitations.  After 
the  lapse  of  that  period,  the  statute  becomes  a  sword  instead 
of  a  shield  merely.  An  actual  title  is  conferred  upon  the  ad- 
verse holder,  and  the  original  owner's  claim  is  extinguished. 
Hence,  in  the  case  of  specific  property  claimed  by  adverse  pos- 
session, it  is  not  the  lex  fori  which  will  determine  the  period 
during  which  it  must  be  adversely  held,  but  the  law  of  the  situs 
of  the  adverse  possession,  that  is  the  lex  situs  of  the  property 
itself. 

Thus,  in  Shelby  v.  Guy,'  the  defendant  and  those  under  whom 
he  claimed  had  been  in  adverse  possession  of  certain  slaves, 
claimed  by  the  plaintiff,  for  ten  years  while  they  both  lived  in 
Virginia.  Afterwards  the  defendant  removed  to  Tennessee  and 
was  there  sued  for  the  slaves.  By  the  law  of  Virginia,  five 
years'  possession  of  chattels  barred  an  action  of  detinue.  This 
Virginia  statute  the  defendant  set  up  in  the  Tennessee  courts 
as  a  defense  to  the  action.     The  Supreme  Court  of  the  United 

•  Story,  Confl.  L.  §  582;  Don  v.  Lippmann,  6  CI.  &  F.  1,  16  ;  Perkin« 
V.  (iuy,  55  Miss.  153,  30  Am.  Rep.  510  ;  Lyman  w.  Campbell,  34  Mo.  App. 
213.  This  would  seem  to  be  a  matter  of  discharge  of  the  contract,  to  be  con- 
trolled by  the  lex  solutionis. 

'  11  Wheat.  361. 


624  LIMITATIONS  —  STATUTE  OF,  FRAUDS.  §  210 

States  held  that  it  was  a  good  defense,  since  it  attached  to  the 
possession  of  the  property  before  it  left  Virginia.^ 

Another  instance  in  which  a  statute  of  limitation  may  become 
a  substantive  part  of  the  claim  arises  in  case  of  actions  for  death 
by  wrongful  act  or  other  statutory  torts.  If  the  same  statute  that 
creates  the  remedy  prescribes  the  time  within  which  the  action 
thereon  must  be  brought,  it  is  generally  construed  as  imposing 
that  period  for  the  prosecution  of  the  remedy  as  a  condition 
essential  to  prosecuting  it  at  all.  It  becomes  a  part  of  the  right 
itself,  and  is  governed  by  the  same  law  that  regulates  the  right 
in  other  respects  (lex  loci  delicti).'  But  if  the  period  of  limitation 
is  not  prescribed  by  the  same  statute  which  confers  the  right, 
but  is  found  in  a  general  statute,  the  general  principle  applies, 
and  it  becomes  a  law  relating  to  the  remedy,  which  will  have  no 
exterritorial  force.  In  such  case,  the  law  of  the  situs  of  the 
remedy  (lex  fori)  again  becomes  the  "proper  law."^" 

If  the  statute  of  Frauds  is  urged  as  a  defense  to  an  action 
upon  a  verbal  contract,  the  statute  of  Frauds  of  tbe  forum  pro- 
viding that  "no  action  shall  be  brought"  upon  the  contract  in 
question  unless  in  writing,  etc.,  while  the  law  governing  the 
obligation  of  the  contract  authorizes  the  contract  to  be  verbal, 
it  would  seem  upon  principle  (again  applying  the  criterion  ^*) 
that  this  should  be  regarded  as  a  part  of  the  obligation  of  the 
contract,  not  of  the  remedy.  For  a  retroactive  statute  applica- 
ble to  an  existing  oral  contract,  providing  that  no  action  should 
be  brought  on  such  contracts  unless  in  writing,  would  undoubt- 
edly impair  the  obligation  of  the  contract,  since  it  takes  away 
all  remedy.     But  it  has  been  more  generally  held  that  this  is  a 

8  This  case  leaves  it  undecided  whether  in  the  case  of  chattels  it  should 
be  the  law  of  the  actual  or  of  the  legal  situs  of  the  goods  that  should  govern. 
There  can  be  little  question  however  that  the  law  of  the  actual  situs  of  the 
chattels  should  control. 

9  Canadian  Pac.  R.  R.  Co.  v.  Johnson,  9  C.  C.  A.  587,  61  Fed.  738 ;  The- 
roux  V.  R.  R.  Co.,  12  C.  C.  A.  52,  64  Fed.  84 ;  Sea  Grove,  etc.  Association  v. 
Stockton,  148  Penn.  St.  145,  23  Atl.  1063  ;  Rathbone  v.  Coe,  6  Dak.  91,  5f 
N.  W.  620 ;  Cavanaugh  v.  Nav.  Co.,  13  N.  Y.  Supp.  540  ;  ante,  §  202. 

10  Munos  V.  R.  R.  Co.,  2  C.  C.  A.  163,  51  Fed.  188  ;  Johnston  v.  R.  R 
Co.,  50  Fed.  886;  O'Shields  ».  R.R.  Co.,  83  Ga.  621,  10  S.  E.  268. 
"  Ante,  §  180. 


§  211  SET-OFF.  525 

matter  of  remedy,  of  domestic  policy,  to  be  governed  by  the  lex 
fori,  no  matter  where  the  contract  is  made  or  to  be  performed.^* 

But  if  by  the  **  proper  law"  of  the  oral  contract  it  is  provided 
that  '*no  action  shall  be  brought"  thereon  unless  it  be  in 
writing,  while  the  lex  fori  does  not  require  it  to  be  in  writing, 
obviously  the  lex  fori  does  not  raise  any  question  of  the  im- 
pairment of  the  obligation  of  the  contract.  On  the  contrary, 
it  enforces  the  obligation  to  a  greater  extent  than  would  the 
"proper  law"  of  the  contract.  In  this  case,  therefore,  the 
matter  is  one  pertaining  to  the  remedy,  to  be  controlled  by 
the  lex  fori.^^ 

§  211.  Set-offs  and  Counter-claims.  —  There  is  another  de- 
fense which  may  involve  some  degree  of  conflict  between  the  lex 
fori  and  the  law  governing  the  obligation  of  a  contract.  This 
is  the  plea  of  set-off.  No  difficulty  however  need  arise  if  care 
is  taken  to  distinguish  between  the  substantive  validity  and 
effect  of  the  claim  sought  to  be  set  off,  viewed  as  a  mere  claim 
against  the  plaintiff ,  and  its  effect  as  a  defense  to  the  plaintiff's 
action.  In  the  first  aspect,  it  is  governed  by  its  proper  law, 
the  law  of  its  situs,  just  as  if  it  were  an  independent  claim 
upon  which  the  defendant  proposes  to  sue  the  plaintiff.  In  its 
second  aspect,  as  a  defense  to  the  plaintiffs  action,  the  ques- 
tion whether  it  may  be  alleged  in  defense  thereof,  the  mode  of 
pleading  it,  and  the  effect  of  the  plea,  usually  pertain  to  the 
remedy  merely,  not  to  the  substantive  cause  of  action,  and  hence 
are  controlled  by  the  lex  fori.* 

12  Leroux  r.  Brown,  14  Eng.  L.  &  Eq.  247,  74  E.  C.  L.  800;  Wolf  v. 
Burke,  18  Colo.  264,  32  Pac.  427;  Downer  r.  Cliesebrough,  36  Conn.  39, 
4  Am.  Rep.  29  ;  Hall  v.  Cordell,  142  U.  S.  116.  But  see  Baxter  Bank  ». 
Talbot,  154  Mass.  213,  28  N.  E.  163  ;  Miller  v.  WUson,  146  111.  523,  34  N.  E. 
1111,  1112 ;  Cochran  v.  Ward,  5  Ind.  App.  89,  29  N.  E.  795,  See  ante, 
§§  173,  174,  where  the  law  controlling  the  effect  of  the  statute  of  Frauds  ia 
discussed. 

18  See  ante,  §§  173,  174  ;  Downer  v.  Chesebrough,  36  Conn.  39,  4  Am. 
Rep.  29 ;  Wolf  v.  Burke,  18  Colo.  264,  32  Pac.  427.  But  see  Cochran  v. 
Ward,  5  Ind.  App.  89,  29  N.  E.  795. 

1  Story,  Confl.  L.  §  574  ;  Whart.  Confl.  L.  §§  788,  789  ;  Dicey,  Confl.  L, 
711;  Davis  v.  Morton,  5  Bush  (Ky.),  161,  96  Am.  Dec.  345  ;  Fuller  v.  Steig. 
litz.  27  Ohio  St.  355,  22  Am.  Rep.  312 ;  Midland  Co.  r.  Broat,  50  Minn.  564 


526  SET-OFF.  §  211 

But  if  the  principal  contract,  in  its  very  nature,  implies  a 
denial  of  the  right  of  set-off,  as  in  case  of  negotiable  paper, 
where  the  gist  of  its  negotiability  lies  in  the  fact  that  the  maker 
cannot  plead  set-offs  or  other  equities  against  a  subsequent  bona 
fide  holder,  the  matter  becomes  part  of  the  obligation  of  the 
principal  contract,  and  is  to  be  controlled  by  the  proper  law 
of  that  contract,  not  by  the  lex  fori.  Hence,  to  a  contract 
negotiable  by  its  proper  law,  sued  upon  in  another  State,  a  set- 
off or  other  equity  cannot  be  pleaded,  though  it  might  be  a 
proper  plea  under  the  lex  fori,  if  the  contract  were  governed  by 
the  latter  law.'' 

On  the  other  hand,  if  the  contract  is  not  negotiable  by  the 
"proper  law,"  and  a  set-off  might  be  pleaded  under  that  law,  it 
has  been  said  that  the  set-off  may  be  pleaded  in  the  forum, 
though  by  the  lex  fori  the  contract  is  negotiable." 

But  if  we  apply  the  criterion  already  used  so  often  to  distin- 
guish the  remedy  from  the  obligation  of  the  contract,  it  will  be 
seen  that,  while  a  retrospective  law  permitting  a  defendant  in 
an  action  by  the  holder  of  a  negotiable  security  to  plead  set-offs 
and  defenses  not  before  authorized  would  clearly  impair  the  obli- 
gation of  the  defendant's  contract,  a  similar  retrospective  law, 
applicable  to  a  non-negotiable  instrument  (subject  to  equities) 
and  prohibiting  the  defendant  to  plead  set-offs  and  counter- 
claims, would  not  (it  would  seem)  impair  the  obligation  of  the 
contract  sued  upon,  but  would  merely  affect  the  remedy.  The 
latter  question  should  therefore  be  governed  by  the  lex  fori.* 

52  N.  W.  972.  The  lex  fori  governs  the  statute  of  limitations  as  applied  to  a 
set-off.     See  Ruggles  v.  Kieler,  3  Johns.  (N.  Y.)  263,  3  Am.  Dec.  482. 

2  Pritchard  v.  Norton,  106  U.  S.  124,  133;  Stevens  v.  Gregg,  89  Ky.  461, 
12  S.  W.  775,  776  ;  Harrison  v.  Edwards,  12  Vt.  648,  36  Am.  Dec.  364 ; 
Wilson  V.  Lazier,  11  Gratt.  (Va.)  477,  482.     See  ante,  §  182. 

8  Vermont  Bank  v.  Porter,  5  Day  (Conn.),  316,  5  Am.  Dec.  157.  See 
Fuller  0.  Steiglitz,  27  Ohio  St.  355,  22  Am.  Rep.  312,  317. 

*  See  Pritchard  v.  Norton,  106  U.  S.  124,  133 ;  Midland  Co.  v.  Broat,  50 
Minn.  562,  52  N.  W.  972,  973.    See  Bank  v.  Trimble,  6  B.  Mon.  (Ky.)  599. 


§  212  f  OKEIGN  LAWS  TO  BE  PLEADED.  527 


PART    VIII. 

PLEADING  AND  PROOF  OF  FOREIGN  LAWS. 


CHAPTER  XXIII. 

PLEADING  AND  PROOF  OF  FOREIGN  LAWS. 

§  212.    Foreign  Laws  must  be  Specially  Pleaded.  —  It  is  a 

fundamental  principle  of  the  common  law  that  courts  will  take 
judicial  notice  of  the  public  laws  of  their  own  State,  and  that 
such  laws  need  not  be  specially  pleaded  nor  proved.  But  the 
laws  of  other  States  are  universally  regarded  as  facts  which, 
independently  of  statute,  must  be  specially  pleaded,  wherever 
the  lex  fori  requires  other  facts,  under  like  circumstances,  to  be 
pleaded.^ 

But  if  the  circumstances  are  such  that,  if  the  foreign  law  iu 
question  were  any  other  fact,  it  need  not  be  pleaded,  neither 
need  the  foreign  law.  Thus,  if  the  foreign  law  is  immaterial  to 
the  merits,  it  of  course  need  not  be  pleaded.  So  also  if  the 
foreign  law  is  a  mere  matter  of  evidence,  the  lex  fori  (follow- 
ing the  general  rules  of  pleading)  not  requiring  matter  of  evi- 
dence to  be  pleaded,  the  failure  to  plead  the  foreign  law  is  not 
error. 

Thus,  in  Thomson-Houston  Electric  Co.  v.  Palmer,'  a  note 
was  executed  and  made  payable  in  Illinois.  The  consideration 
for  the  note  was  an  antecedent  indebtedness.  The  suit  was 
brought  in  Minnesota  upon  the  original  indebtedness,  to  which 

1  Thatcher  ».  Morris,  11  N.  Y.  437;  Thomson- Houston  Electric  Co.  ». 
Palmer,  52  Minn.  174,  53  N.  W.  1137,  1138 ;  Liverpool  Steam  Co.  v.  Ins. 
Co.,  129  U.  S.  397,  445. 

2  52  Minn.  174,  53  N.  W.  1137. 


528  PBOOF   OF  FOREIGN  LAWS.  §  218 

the  defendant  pleaded  payment  by  note.  By  the  law  of  Illi- 
nois, the  giving  and  receiving  of  a  note  for  the  amount  of  a  pre- 
existing debt  operated  as  a  payment  thereof,  merging  the  debt. 
By  the  law  of  Minnesota  it  did  not,  but  suit  might  still  be 
brought  upon  the  original  debt.  The  plaintiff  objected  that 
since  the  defendant  relied  upon  a  foreign  law  (the  law  of  Illi- 
nois), it  should  have  been  specially  pleaded.  But  the  Minne- 
sota court  held  that  inasmuch  as  the  proof  of  that  law  (being  the 
"proper  law"*)  was  merely  by  way  of  evidence  of  the  truth 
of  the  defendant's  plea  of  payment,  it  need  not  be  specially 
pleaded. 

In  many  of  the  States  statutes  have  been  passed  dispensing 
with  the  necessity  for  specially  pleading  foreign  laws,  but  even 
in  such  States  they  are  usually  required  to  be  proved  like  other 
facts.* 

§  213.  Proof  of  Foreign  Laws.  —  Foreign  laws  are  matters 
of  fact,  and  like  other  facts  should  be  proved,  unless  established 
by  legal  presumptions.  A  court  will  not  take  judicial  notice  of 
their  existence  or  of  their  terms.  And  for  this  purpose  the 
States  of  this  Union  are  foreign  to  one  another.* 

But  i\iQ  federal  courts,  in  enforcing  the  laws  of  States  within 
their  territorial  jurisdiction,  take  judicial  notice  of  them.  In 
such  cases,  the  laws  are  to  be  regarded  as  domestic,  not  as 
foreign,  laws.*"  A  curious  consequence  flows  from  these  prin- 
ciples and  from  the  fact  that  the  Supreme  Court  of  the  United 
States  not  only  hears  appeals  from  the  federal  courts,  but  under 
certain  circumstances  from  the  highest  State  courts  also.  Al- 
though the  Supreme  Court,  sitting  as  a  court  of  appeal  to  the 
federal  courts,  will  take  judicial  notice  of  the  laws  of  the  sev- 
eral States,  yet,  if  upon  appeal  from  a  State  court  of  last  resort, 
it  has  no  more  capacity  than  the  State  court  itself  to  take  judi- 

8  Ante,  §  189. 

*  Post,  §§  213,  214. 

1  Liverpool  Steam  Co.  v.  Ins.  Co.,  129  U.  S.  397,  445 ;  Chicago  &  A.  R.  R 
Co.  V.  Ferry  Co.,  119  U.  S.  615  ;  In  re  Capper's  Will,  85  la.  82,  52  N.  W. 
6,  8;  Kelley  v.  Kelley,  161  Mass.  Ill ;  Ufford  v.  Spaulding,  156  Mass.  65. 

•  Liverpool  Steam  Co.  v.  Ins.  Co.,  129  U.  S.  397,  445 ;  Lamar  v  Micon, 
112  U.  S.  452  ;  b.  c.  114  U.  S.  218. 


§  213  PROOF   OF  FOREIGN  LAWS.  629 

eial  notice  of  the  laws  of  other  States  than  that  from  which  the 
appeal  comes.' 

Primarily,  the  mode  of  proving  a  foreign  law  depends  upon 
its  nature,  as  statutory  or  common  law,  written  or  unwritten. 
If  the  law  which  is  to  be  proved  is  statutory^  the  statute  itself 
must  usually  be  produced,  or  such  a  copy  thereof  as  may  be  ap- 
proved as  evidence  under  the  law  of  the  forum.*  The  judicial 
decisions  of  the  State  whose  law  is  to  be  proved  are  not  usually 
to  be  received  in  evidence  to  prove  what  is  its  statute  law  (for 
they  are  not  the  best  evidence),  but  they  should  be  looked  to  in 
order  to  determine  the  proper  construction  of  such  foreign  stat- 
utes after  they  have  been  otherwise  established.^  And  this  is 
true  though  the  same  provisions  in  the  statutes  of  the  forum 
have  been  construed  differently  there.' 

With  respect  to  the  common  or  unwritten  law  of  a  foreign 
State  or  country,  the  general  rule  is  that  it  is  to  be  proved  by 
the  best  evidence  the  nature  of  the  case  will  admit  of.  This 
rule  was  formerly  construed  to  require  as  a  usual  thing  thai 
such  unwritten  law  must  be  proved  by  the  testimony  of  lega) 
practitioners  of  the  foreign  State  or  other  persons  learned  in  it? 
laws.'     It  was  thought  inadmissible  to  introduce  the  reports  oi 

'  Liverpool  Steam  Co.  v.  Ins.  Co.,  129  U.  S.  397,  445  ;  Hanley  v.  Don- 
oghue,  116  U.  S.  1 ;  Renaud  v.  Abbott,  116  U.  S.  277,  285. 

♦  Whart  Confl.  L.  §§  772-778 ;  Emery  v.  Berry,  28  N.  H.  473,  61  Am. 
Dec.  622,  626 ;  Clarke  v.  Bank,  10  Ark.  516,  52  Am.  Dec.  248,  and  note ; 
Tenant  r.  Tenant,  110  Penn.  St.  478,  1  Atl.  532;  Phillips  v.  Gregg,  10  Watta 
(Penn.),  158,  36  Am.  Dec.  168. 

6  Gilchrist  v.  Oil  Co.,  21  W.  Va.  115,  45  Am.  Rep.  555;  Van  Matre  r. 
Sankey,  148  111.  356,  23  L.  R.  A.  665,  36  N.  E.  628 ;  Hunt  v.  Hunt,  72  N.  Y. 
217,  28  Am.  Rep.  129;  Jessup  r.  Carnegie,  80  N.  Y.  441,  36  Am.  Rep.  643; 
Ufford  V.  Spaulding,  156  Ma-is.  65,  69.  The  same  rule  prevails  in  the  federal 
courts.  Bailey  r.  Maguire,  22  Wall.  350  ;  Bucher  v.  R  R.  Co.,  125  U.  S. 
555. 

«  Van  Matre  v.  Sankey,  148  111.  356,  23  L.  R.  A.  665,  36  N.  E.  628. 

T  Loring  r.  Thomdike,  5  Allen  (Mass.),  257;  Gardner  v.  Lewis,  7  Gill 
(Md.),  378.  See  Whart.  Confl.  L.  §  774.  Where  however  the  question  is 
not  as  to  the  law  of  a  particular  country,  bnt  as  to  its  business  or  other 
customs,  or  as  to  the  general  practice  there,  any  person  familiar  with  such 
customs  or  practice  is  a  competent  witness,  though  he  knows  nothing  of  the 
legal  effect  there  of  such  customs  or  practice.     See  Ganer  v.  Lanesborongh, 

34 


530  PRESUMPTIONS  AS   TO  FOREIGN   LAWS.  §  214 

cases  adjudged  in  a  particular  State  as  evidence  of  the  common 
law  of  that  State. ^  But  in  recent  years  the  opinions  of  the 
courts  have  undergone  a  change  in  this  respect,  and  it  is  now 
pretty  generally  conceded  that  the  published  official  reports  of 
adjudged  cases  are  competent  evidence  for  this  purpose. ^  In 
such  cases  it  is  the  province  of  the  jury  to  determine  whether  or 
not  such  adjudications  have  been  made  in  the  foreign  State,  but 
it  is  the  duty  of  the  court  to  construe  them  and  to  deduce  the 
rules  of  law  they  establish.-^"  And  such  decisions  must  be  pre- 
sented in  evidence  at  the  trial.  They  cannot  be  used  for  the 
first  time  in  an  appellate  court. ^^ 

§  214.  PresumptionB  as  to  Foreign  La-ws.  —  Notwithstand- 
ing the  rules  mentioned  in  the  preceding  section  touching  the 
proof  of  foreign  laws  as  facts,  there  are  certain  presumptions 
indulged  by  the  courts  as  to  the  state  of  the  law  in  a  foreign 
country  or  State,  which  may  operate  as  evidence  thereof,  in  the 
absence  of  proof  to  the  contrary.  In  other  words,  presumptions 
may  arise  with  respect  to  foreign  laws,  just  as  in  other  matters 
of  fact,  wherever  the  probabilities  point  to  a  particular  conclu- 
sion with  sufficient  force  to  overcome  the  legal  principle  that 
the  burden  of  proof  rests  upon  the  party  alleging  a  fact. 

One  of  these  presumptions  frequently  indulged  b}''  the  courts, 
in  the  absence  of  contrary  evidence,  relates  to  the  existence  of 
the  common  law  in  a  foreign  State  whose  law  is  in  issue,  where 
the  laws  of  the  latter  State  are  based  upon  the  common  law  sys- 
tem of  jurisprudence.  It  is  a  reasonable  presumption,  in  the 
absence  of  proof  to  the  contrary,  that  a  common  law  principle 
applicable  to  the  case  is  retained  in  such  State.^    But  where  the 

Peake,  18,  explained  in  11  CI.  &  F.  124  ;  Phillips  v.  Gregg,  10  Watts  (Penn.), 
158,  36  Am.  Dec.  168  ;  Vander  Donck  v.  Thelusson,  8  C.  B.  812. 

8  Gardner  v.  Lewis,  7  Gill  (Md. ),  378,  393. 

9  Latimer  v.  Elgin,  4  Dess.  (S.  G.)  26,  32;  Uffbrd  v.  Spaulding,  156  Mass. 
65,  69  ;  Ames  v.  McCamber,  124  Mass.  85 ;  Thomson-Houston  Electric  Co. 
V.  Palmer,  52  Minn.  174,  53  N.  W.  1137. 

10  Alexander  v.  Pennsylvania  Co.,  48  Ohio  St.  623,  30  N.  E.  69  ;  Ufford  v. 
Spaulding,  156  Mass.  65,  30  N.  E.  360  ;  Thomson-Houston  Co.  v.  Palmer, 
52  Minn.  174,  53  N.  W.  1137. 

11  Kelley  v.  Kelley,  161  Mass.  111. 

1  Thorn  v.  Weatherly,  50  Ark.  237,  7  S.  W.  33 ;   Eureka  Springs  Co.  v. 


§  214  PRESUMPTIONS   AS  TO  FOREIGN   LAWS.  531 

common  law  of  the  forum  in  respect  to  the  particular  question 
differs  from  the  principles  applied  to  the  same  question  by  the 
courts  of  other  common  law  States,  so  that  it  may  reasonably  be 
doubted  what  the  unwritten  law  of  the  foreign  State  may  be, 
the  general  rule  is  that  that  view  of  the  common  law  taken  by 
the  courts  of  the  forum  will  prevail  in  the  absence  of  evidence 
of  contrary  rulings  by  the  courts  of  the  foreign  State  whose  law 
is  in  question.' 

But  it  is  to  be  observed  that  this  presumption  is  applicable 
only  to  those  States  whose  system  is  based  upon  the  common 
law.  It  cannot  be  used  to  ascertain  the  law  of  a  foreign  State 
not  originally  settled  by  English  colonists,  or  whose  laws  are 
founded  upon  some  other  system  than  the  common  law,  such 
as  the  civil  or  Roman  law,  the  laws  and  customs  of  Indian 
tribes,  etc' 

If  the  foreign  law  in  issue  is  the  unwritten  law  of  a  State  not 
originally  subject  to  the  common  law,  or  in  any  event  if  it  is  a 
statute  or  written  law,  the  above  presumption  does  not  apply, 
and  in  strictness  it  would  seem  that  there  were  no  such  proba- 
bilities one  way  or  the  other  in  general  as  would  justify  any 
presumption  as  to  the  foreign  law.  Under  this  view,  it  is  a 
mere  fact,  open  to  inquiry,  susceptible  of  proof,  and  like  any 
other  material  fact  must  be  proved  in  order  to  sustain  the  alle- 
gations.    Without  such  proof,  the  case  or  the  defense  founded 

Timmons,  51  Ark.  459,  11  S.  W.  690  ;  Mohr  v.  Miesen,  47  Minn.  228,  49 
N.  W.  862;  Wolf  v.  Burke,  18  Colo.  264,  32  Pac.  427;  Dunn  v.  Adams, 
1  Ala.  527,  35  Am.  Dec,  42  ;  Peeti;.  Hatcher,  112  Ala.  514,  21  So.  711,  712; 
Flagg  V.  Baldwin,  38  N.  J.  Eq.  219,  48  Am.  Rep.  308,  310;  Benbow  i;.  Moore 
(N.  C),  19  S.  E.  156;  Jones  v.  Rice  (Ga.),  18  S.  E.  348;  Knapp  t;. 
Knapp  (Mich.),  55  N.  W.  353 ;  Sandidge  v.  Hunt,  40  La.  Ann.  766,  5  So. 
55,  57;  Houghtaling  v.  Ball,  19  Mo.  84,  59  Am.  Dec.  331. 

2  Com.  V.  Graham,  157  Mass.  73  ;  Harvey  v.  Merrill,  150  Mas.s.  1,  22 
N.  E.  49;  Kelley  v.  Kelley,  161  Mass.  Ill  ;  Buchanan  v.  Hubbard,  119  Ind. 
187,  21  N.  E.  538,  539  ;  Houghtaling  i;.  Ball,  19  Mo.  84,  59  Am.  Dec.  331. 

3  Buchanan  v.  Hubbard,  119  Ind.  187,  21  N.  E.  538,  539  ;  Brown  i'. 
Wright,  58  Ark.  20,  22  S.  W.  1022 ;  Flagg  v.  Baldwin,  38  N.  J.  Eq.  219,  48 
Am.  Rep.  308,  310  ;  Garner  v.  Wright,  52  Ark.  385,  12  S.  W.  785  ;  Feet  v. 
Hatcher,  112  Ala.  514,  21  So.  711,  712;  Davison  v.  Gibson,  5  G  C.  A.  543, 
56  Fed.  443. 


632  PRESUMPTIONS  AS  TO  FOEEIGN  LAWS.         §  214 

thereon  simply  falls  to  the  ground.      To  this  strictly  logical 
view  some  of  the  courts  have  subscribed.* 

But  it  must  be  conceded  that  the  decided  trend  of  the  Ameri- 
can decisions  is  towards  the  presumption,  in  the  absence  of  con- 
trary evidence,  that  the  foreign  law  under  which  either  party 
claims  is  identical  with  the  lex  fori.^ 

*  Atchison,  etc.  R.  R.  Co.  v.  Betts,  10  Colo.  431,  15  Pac.  821  ;  Whitford 
i>  Panama  R.  R,  Co.,  23  N.  Y.  465,  468 ;  Leonard  v.  Nav.  Co.,  84  N.  Y.  48, 
53  ;  Thompson  v.  Ketcham,  8  Johns.  (N.  Y.)  189  ;  Murphy  v.  Collins,  121 
Mass.  6 ;  Kelley  v.  Kelley,  161  Mass.  Ill,  114  ;  Houghtaling  v.  Ball,  19  Mo. 
84,  59  Am.  Dec.  331.  See  Story,  Confl.  L.  §  637,  note  (a).  But  even  in 
States  whose  laws  are  not  based  upon  the  common  law,  it  may  be  presumed 
without  actual  proof  that  injuries  for  which  an  inherent  sense  of  justice  de. 
mands  that  redress  should  be  given,  such  as  ordinary  breaches  of  contract, 
deprivations  of  liberty  without  authority,  physical  injuries  caused  by  mali- 
cious attacks  or  negligent  omissions,  etc.,  will  be  actionable,  or  at  least  will 
be  recognized  as  wrongs,  in  the  State  where  the  act  is  done.  See  Whitford  v. 
Panama  R.  R.  Co.,  23  N.  Y,  465,  468  ;  W.  U.  Tel.  Co.  v.  Phillips,  2  Tex.  Civ. 
App.  608,  21  S.  W.  638,  641.     See  Machado  v.  Fontes,  2  L.  R.  Q.  B.  D.  231. 

6  Davison  v.  Gibson,  5  C.  C.  A.  543,  56  Fed.  443  ;  Sandidge  v.  Hunt,  4(! 
La.  Ann.  766,  5  So.  55;  Allen  v.  Allen,  6  Rob.  (La.)  104,  39  Am.  Dec.  553; 
Kuenzi  v.  Elvers,  14  La.  Ann.  391,  74  Am.  Dec.  434 ;  Shattuck  v.  Chandler, 
40  Kan.  516,  20  Pac.  225  ;  Mo.  Pac.  R.  R.  Co.  v.  Sharitt,  43  Kan.  375,  19 
Am.  St.  Rep.  143 ;  Haggin  v.  Haggin,  35  Neb.  375,  53  N.  W.  209  ;  Brown  v. 
Wright,  58  Ark.  20,  22  S.  W.  1022 ;  Bath  Gas  Light  Co.  v.  ClafiFy,  151  N.  Y. 
24,  45  N.  E.  390 ;  American  Oak  Leather  Co,  v.  Bank,  9  Utah,  318,  33  Pac. 
246;  Gist  v.  Tel.  Co.,  45  S.  C.  344,  23  S.  E.  143  ;  James  v.  James,  81  Tex. 
373,  16  S.  W.  1087;  Kennebrew  v.  Machine  Co.,  106  Ala.  377,  17  So.  545; 
Peet  V.  Hatcher,  112  Ala.  514,  21  So.  711,  712.  A  few  of  the  cases  hold  that 
in  such  case  the  proper  foreign  law  is  substituted  by  the  lex  fori,  on  the  ground 
that  the  laws  of  a  country  to  which  a  party  appeals  for  redress  furnish  primn 
facie  the  rule  of  decision.  See  Monroe  v.  Douglas,  5  N.  Y.  447;  Carpenter  v. 
R.R.  Co.,  72  Me.  388,  39  Am.  Rep.  340,  341  ;  Buchanan  v.  Hubbard,  119 
Ind.  187,  21  N.  E.  538,  539.  This  is  only  true  so  long  as  the  transaction  is 
presumed  to  be  a  purely  domestic  one,  as  it  will  be  until  a  foreign  element 
is  shown  to  exist.  But  as  soon  as  a  foreign  element  in  the  transaction 
is  proved,  the  "  proper  law "  becomes  applicable,  and  the  lex  fori  ceases  to 
apply.  After  proof  of  such  foreign  element,  the  lex  fori  will  govern,  if  at 
all,  not  hy  vi&Y  oi  substitution  iov  t\ie  "proper  law,"  but  because  the  proper 
law  will  be  presumed  to  be  identical  with  the  lex  fori.  It  is  not  the  ' '  lex 
fori"  (in  its  technical  sense)  that  is  enforced,  but  the  "proper  law"  pre- 
sumed to  be  the  same  as  the  lex  fori.  It  is  a  case  of  identity  or  similarity, 
rather  than  of  substitution. 


§  214  PRESUMPTIONS  AS   TO  FOREIGN   LAWS.  533 

The  true  basis  of  this  presumption,  as  a  rule  of  law  (if  it  is  to 
be  considered  as  sound),  is  to  be  found  in  the  unwillingness  of 
the  courts  to  deny  relief  to  litigants  coming  before  them,  merely 
for  want  of  a  law  to  administer.  Certainly  the  great  weight  of 
authority  is  in  favor  of  the  rule.  Nor  is  it  in  most  instances 
apt  to  work  any  material  injustice,  since  a  failure  of  both  parties 
to  present  to  the  court  any  evidence  of  the  proper  foreign  law 
may  reasonably  justify  the  court  in  presuming  that  neither 
party  finds  anything  there  which  would  place  him  in  a  position 
more  advantageous  than  he  occupies  under  the  lex  fori,  or  which 
would  place  his  adversary  in  a  less  advantageous  position.  It 
is  not  unfair  to  presume  therefore,  whatever  the  real  differ- 
ences may  be  between  the  ''proper  law"  and  the  lex  fori, 
that  for  the  purposes  of  the  case  in  hand  neither  party  can  be 
injured  by  the  presumption  that  the  two  laws  are  similar. 


INDEX. 


[RBFBREKCES  are  to  SKOnOMS.] 


ABANDONMENT, 

of  domicil  of  choice,  effect  of,  65-66. 
of  husband  by  wife,  effect  of,  upon  wife's  domicil,  48. 
of  wife  bj  husband,  effect  of,  upon  wife's  domicil,  47,  61. 
ACCEPTANCE, 

of  bill  of  exchange, 

obligations  imposed  by,  182. 
situs  of,  164. 

void,  if  not  in  writing,  173. 
of  offer,  situs  of  contract  at  place  of,  157. 
ACCEPTOR   OF  BILL  OF  EXCHANGE.     (See  Acckptamcb.) 
ACCESSARIES,   situs   of  crime  of,  204.     {See  Crimes.) 
ACCOMMODATION  INDORSERS.     {See  Indoksers.) 
regarded  as  joint  makers,  182. 
situs  of  contract  of,  165. 
ACCUMULATIONS,  laws  prohibiting,  70,  144. 
ACKNOWLEDGMENT  OF  CLAIM,  effect  of,  upon  statute  of  limita 

tion,  210. 
ACTIONS,  205-211.     {See  Remedy.) 

for  death  by  wrongful  act,  199-202.     (-See  Death.) 
local  or  transitory,  192. 
ACTS,  law  governing,  depends  upon  whether  they  are  voluntary  or  invol 

untary,  17. 
ADMINISTRATION,  102-113. 
a  proceeding  in  rem,  104. 
ancillary  or  auxiliary,  118. 

appointment  and  qualification  of  representative,  105. 
contribution  between  heirs  or  devisees,  112. 
distribution  of  residuum,  139-150.     {See  Succession;  Wills.) 
exoneration  of  realty  out  of  personalty,  and  vice  versa,  112. 
marshalling  of  assets,  110. 
order  of  payment  of  decedent's  debts,  110. 
powers  of  representative  over  assets,  106. 
assets  abroad,  106. 

assets  transiently  within  State  of  appointment,  106. 
assets  subsequently  removed  to  foreign  State,  106. 
assets  in  foreign  State  removed  to  State  of  appointment,  lOfii 


536  INDEX. 

[References  are  to  Sections.] 

ADMINISTRATION,  —  continued. 

powers  of  representative  over  assets, 

duty  of  representative  to  collect  foreign  claims,  106. 

judgment  by  or  against  one  representative,  effect  of,  as  to  an 

other,  107. 
situs  of  debts  for  purpose  of,  106,  124. 
transfer  of  assets  in  course  of, 
chattels,  106,  124. 
choses  in  action,  106,  124. 
land,  106. 

negotiable  securities,  124. 
rights  of  creditor  against  decedent's  land,  111. 
suits  by  and  against  personal  representatives,  107. 
suits  by  representative  for  tortious  death,  108.     {See  Death.) 
voluntary  payment  of  debt  to  foreign  representative,  109. 
ADMINISTRATOR,  powers  and  duties  of  foreign,  102-113.    {See  Admin 

ISTRATION.) 

ADMISSIBILITY  OF  EVIDENCE,  208. 

of  parol  evidence  to  explain  indorser's  contract,  183,  208. 
ADOPTION, 

decree  of,  in  rem,  86. 

analogous  to  decree  of  divorce,  101. 

effect  of,  upon  infant's  domicil,  34,  44. 

entitles  infant  to  inherit,  when,  12. 

status  of,  101. 
ADULTERY,  capacity  to  remarry  of  guilty  party  to  divorce  for,  73,  74. 
ADVERSE  POSSESSION  OF  CHATTELS,  effect  of,  210. 
AFFINITY,  effect  of,  upon  marriage,  9,  73,  75. 
AGE   OF  MAJORITY,  law  determining,  71. 
AGENTS.     {See  Master.; 

contracts  by,  situs  of,  158. 

implied  authority  of,  158. 

partners  as,  158,  181. 

subsequent  ratification  of  acts  of,  128,  168. 

torts  of,  195. 
ALIMONY,  decree  for,  in  personam,  95. 
ALTERATION  OF   CONTRACT,  effect  of,  190. 
AMBASSADOR,  domicil  of,  20. 
ANCILLARY  administration,  113.     {See  AoMiyiSTRATiON.) 

guardianship,  114-116.     {See  Guardian.) 

receivership,  117-118. 
ANIMALS,  torts  by,  195. 
ANIMUS  MANENDI, 

an  essential  element  of  domicil,  59,  62,  68. 

change  of  mind  in  itinere,  62. 

commencement  of,  62. 

death  in  itinere,  62. 


INDEX.  637 

[References  are  to  Sectiona.] 

ANIMUS  MANENDI,— commued. 
duration  of,  63. 
evidence  of,  64. 
infuturo  not  sufficient,  62. 

must  unite  with  presence,  to  create  domicil  of  choice,  69,  62, 6& 
presumptions  as  to,  64. 

arising  from  mere  presence,  64, 

retention  of  last  domicil,  64. 
what,  sufficient,  61. 

ANTE  NUPTIAL  SETTLEMENT, 

with  respect  to  land,  80. 

with  respect  to  personalty,  82. 
APPEARANCE   OF   DEFENDANT, 

necessary  for  judgments  in  personam,  85-86. 

not  necessary  for  judgments  in  rem,  85-86. 

sufficiency  of,  law  determining,  207. 
APPOINTMENT, 

of  administrators,  105.     {See  Administratiom.J 

of  executors,  105.     (-See  Administration.) 

of  guardians,  114-116.     {See  Guardian.) 

of  receivers,  117-118. 

wills  under  power  of,  150. 
APPRENTICE,  domicil  of,  37. 
ARREST, 

for  crimes,  203-204.     {See  Crimes.) 

in  civil  cases,  207. 
ASSAULT,  204.     {See  Crimes.) 
ASSENT  TO  CONTRACT,  law  governing,  151,  206. 
ASSETS, 

administration  of,  102-113.     (-See  Administratiok.) 

exoneration  of,  112. 

land,  as,  111. 

legal  or  equitable,  110. 

marshalling  of,  110. 

real  or  personal,  110. 
ASSIGNEE, 

of  chose  in  action  may  sue  in  his  own  name,  when,  165,  206. 

for  benefit  of  creditors,  title  of,  138-185.     (See  Assignment.) 

in  bankruptcy,  title  of,  137-138.     {See  Assignment.) 
ASSIGNMENT, 

of  bill  or  note,  right  of  maker  or  acceptor  to  plead  invalidity  of,  12^ 

182. 
of  debt,  right  of  assignee  to  sue  in  his  own  name,  165,  206. 

situs  of  debt,  for  purpose  of,  122. 
of  fund,  bill  or  check  operating  as,  181. 
of  insurance  policy,  166. 
of  land,  11-12.     (5ee  Immovables.) 


538  INDEX. 

[References  are  to  Sections- 3 

ASSIGNMENT,  —  confmucd. 
of  personalty,  127-150. 

absolute  conveyances  and  sales,  128-130. 
as  between  the  parties,  128. 
as  to  creditors,  129. 
sales,  reserving  title  in  vendor,  130. 
chattel  mortgages,  132. 
donations  mortis  causa,  131. 
for  benefit  of  creditors,  138-136, 
in  case  of  land,  11. 
in  case  of  personalty,  138-136. 
fraud  per  se,  136. 
preference  of  creditors,  136. 
recordation  of,  136. 
subsequent  removal  of  property,  133. 
what  creditors  may  attack,  134. 
in  bankruptcy  or  insolvency,  137-138. 

distinguished  from  voluntary,  how,  137. 
given  no  exterritorial  effect,  137 
otherwise  in  England,  137. 
what  creditors  may  attack,  138. 
transfers  by  marriage,  136. 

transfers  by  succession,  139-141.    {See  Succession.) 
transfers  by  will,  142-160.     {See  Wills.) 
ASSUM>*TION  OF  RISK,  doctrine  of,  in  dangerous  employments,  197. 
ATTACHMENT, 

by  creditors,  of  personalty  transferred,  129,  134,  138. 
exemptions  from,  126,  209. 
issuance  of,  to  be  controlled  by  lex  fori,  180. 
situs  of  debt  for  purpose  of,  126. 

B. 

BANKRUPTCY, 

assignment  in,  137-138. 

distinguished  from  voluntary  assignment,  how,  137. 

given  no  exterritorial  effect,  in  United  States,  137. 

otherwise  in  England,  187. 

what  creditors  may  attack,  138. 
discharge  in,  effect  of,  upon  contracts,  191. 
BANNS,  omission  of,  in  celebrating  marriage,  77. 
RASTARD. 

domicil  of.  33,  42. 

constructive,  42. 

original,  33. 
legitimation  of,  97-100.     {See  Legitimacy.) 
right  of,  to  succeed  to  personalty,  140. 
subsequently  legitimated,  domicil  of,  43. 
aubaequently  legitimated,  right  of.  to  succeed  to  property,  12. 


INDEX.  689 

[References  are  to  Secttons.] 
BIGAMOUS  MARRIAGES,  74,  76. 

BILL  OF  EXCHANGE.     (See  Negotiable  Instruments.) 
BILL  OF  LADING.     (5ee  Contracts.) 

assent  to,  151,  208. 

place  of  performance  of,  160. 

validity  of  exemptions  in,  169. 
BOND.     {See  Contracts.) 

effect  of,  as  merging  prior  indebtedness,  189. 

interest  upon,  184. 

situs  of,  163. 
BOTTOMRY  BOND,  authority  of  shipmaster  to  execute,  15& 
BURDEN  OF  PROOF, 

as  to  change  of  domicil,  29,  64. 

as  to  foreign  laws,  214. 

as  to  negligence,  197. 
BUSINESS  CAPACITY,  law  governing,  71. 


c. 

CAPACITY, 

a  passive,  not  an  active,  element,  69. 

a  status,  69. 

as  relating  to  voluntary  or  involuntary  transactions,  69. 

for  business  in  general,  71. 

married  woman,  as  trustee,  71. 

period  of  infancy,  71. 

period  of  wardship,  71. 

settlements  of  guardian  with  ward,  71. 
to  assign  insurance  policy,  166. 
to  contract,  72,  171. 

in  case  of  infant,  72. 

in  case  of  married  woman,  72,  166. 
to  make  a  will  of  lands,  12,  150. 
to  make  a  will  of  personalty  generally,  70,  144. 

under  power  of  appointment,  150. 
to  marry,  73. 

consanguinity  or  affinity,  73,  75. 

guilty  party  to  divorce  prohibited  to  remarry,  73,  74 

miscegenation,  73. 

polygamous  marriages,  75. 
to  succeed  to  decedent's  estate, 

as  devisee  or  legatee,  12,  70,  144. 

as  heir  or  distributee,  12,  140. 

CARRIER, 

contract  of,  160,  169.     (See  Bill  of  Lading  ;   Conteacts.) 
evidence  of  assent  to  bill  of  lading,  151,  208. 
exemption  of,  from  liability  as  insurer,  169. 


540  INDEX. 

[References  are  to  SectionB.] 

CARRIER,  — continued. 

exemption  of,  from  liability  for  negligence,  169. 
liability  of,  for  malicious  acts  of  servants,  197. 
liability  of,  for  torts,  195-202.     (See  Torts.) 
sleeping  car  company,  liable  as,  197. 
CELEBRATION, 

of  contracts  generally,  law  governing,  167-174.     (See  Contracts.) 
of  marriage,  law  governing,  77,  172. 
CEREMONIES, 

for  contracts  generally,  law  governing,  172-174. 
for  marriage  contract,  law  governing,  77,  172. 
for  wills,  law  governing,  143. 
CHAMPERTOUS  CONTRACTS,  validity  of,  168,  176, 176. 
CHARITABLE   TRUSTS,  validity  of,  70,  144. 
CHATTELS.     (See  Movables.) 
CHECK,  operation  of,  as  assignment  of  fund,  181. 
CHILD, 

adoption  of,  101.     (See  Adoption.) 
decree  for  custody  of,  in  rem,  96. 
domicil  of,  31-45.     {5'ce  Domicil.) 
guardianship  of,  40-41,  71,  114-116.     (See  Guardian.) 
legitimacy  of,  97-98. 

legitimation  of,  12,  33,  43,  97-100.     (See  Legitimacy.) 
relation  of  parent  and,  a  double  status,  97. 
rights  and  duties  of  parents  towards,  83. 
CHOICE,  domicil  of,  66-66.     (See  Domicil.) 
CHOSE   IN  ACTION.     (Sec  Debt.) 
CITATION.     (See  Process.) 
CITIZENS, 

of  forum,  lex  fori  substituted  in  favor  of, 

in  case  of  executory  contracts,  when,  7-8,  72,  152. 
in  case  of  executed  transfers  of  personalty, 
absolute  conveyances,  129. 

administration,  102-113.     (See  AdministrationJ 
assignments  for  benefit  of  creditors,  134-135. 
assignments  in  bankruptcy,  138. 
chattel  mortgages,  132. 
guardians,  114-116. 
marital  rights,  80-82. 
receivers,  117-119. 
succession,  140. 
in  case  of  status, 
adoption,  101. 
capacity,  70-74. 

divorce,  89-94.     (See  Divobcb.) 
legitimacy,  98-100. 
marriage,  73-74. 


INDEX.  64J 

[References  are  to  SectlooB.] 

CITIZENS,  --  continued. 

of  other  States,  lex  fori  substituted  in  favor  of, 
in  case  of  administration,  102-113. 
in  case  of  assignments  in  bankruptcy,  138. 
in  case  of  receivers,  117-119. 
CITIZENSHIP, 

distinguished  from  domicil,  21. 
how  in  United  States,  21. 

domicil  inferred  from,  when,  66. 
COLLISION, 

interpretation  of  insurance  policy  excepting  losses  arising  from,  186. 

of  ships  upon  high  seas,  law  governing,  195. 
COMITY,  basis  of  private  international  law,  4. 
COMMON  CARRIER.     (See  Carrier.) 
COMMON  LAW  OF  ANOTHER  STATE 

presumptions  as  to,  214. 

proof  of,  213. 
COMMUNITY  OF  PROPERTY,  80-82. 
COMPARATIVE   NEGLIGENCE,  197. 
COMPENSATORY  DAMAGES,  10,  198. 
COMPETENCY.     (See  Capacity). 

of  parol  evidence  to  explain  indorser's  contract,  183,  208. 

of  witnesses,  generally,  208. 

of  witness,  convicted  of  crime  abroad,  10. 
CONSANGUINITY,  effect  of,  upon  marriage,  9,  73,  76. 
CONSIDERATION, 

antecedent  indebtedness  a,  176, 182. 

executed,  177. 

executory,  176. 

failure  of,  effect  of,  upon  contract,  177. 

for  conveyance  or  mortgage  of  land,  11. 

for  promise,  situs  of,  154-155,  161-162,  176-179. 

gaming,  161,  176,  178. 

law  of  place  of,  governs  validity  of  contract,  when,  11,  176-179. 

legality  of,  178-179. 

malum  in  se,  or  contra  bonos  mores,  9,  152, 177. 

past  services,  as,  177. 

sale  of  liquor,  as,  161,  176,  178. 

sale  of  prohibited  articles,  178. 

sale  or  hire  of  slaves,  as,  177,  178. 

sufficiency  of,  177. 

usurious,  179. 

wagering,  161,  176,  178. 

want  of,  177. 
CONSPIRACY,  204.    (See  Crimes.) 
CONSTRUCTION.     (See  Interprbtatmmi.) 
CONSUL,  domicil  of,  20. 


642  INDEX. 

[References  are  to  Sectiou.] 

CONTRA  BONOS  MORES, 

foreign  law,  when  substituted  by  lex  fori,  9. 
incestuous  marriages,  9,  75. 
polygamous  marriages,  9,  75. 
Sunday  contracts,  not,  9. 
validity  of  contract,  9,  152,  177. 
CONTRACTS, 

alteration  of,  190. 

champertous,  168,  175,  176. 

contra  bonos  mores,  9,  75,  162,  177.     (See  Contka  Bonos  Mobb8.| 

gaming,  161,  176,  178. 

implied  from  work  done,  etc.,  151,  163. 

in  restraint  of  trade,  175. 

insurance,  166,  170,  176,  186.     (See  Insurance  Contbaots.) 

insurer's  liability  of  carrier,  qualified  by,  169. 

interlineation  of,  190. 

interpretation  of,  128,  186. 

marriage,  73,  77,  77-78.     (See  Markiage.) 

merger  of,  by  substituted  agreement,  189. 

negotiable  paper,  121-125,  164-165,  182-183,  211. 

nuptial,  touching  consort's  land,  80. 

touching  consort's  personalty,  82. 
of  surety,  discharged  by  notice  to  sue,  181. 
to  convey  land,  11,  72,  174. 
to  marry,  77. 
executed, 

absolute  conveyances  and  sales  of  land,  11-12. 
of  personalty,  128-130. 

as  between  the  parties,  128. 
as  to  third  persons,  129. 
assignments  for  benefit  of  creditors,  11, 133-13& 
fraud  per  se,  135. 

personalty  subsequently  removed,  133. 
preferences  of  creditors,  135. 
recordation  of  assignments,  135. 
what  creditors  may  attack,  184. 
donations  mortis  causa,  131. 
liens  upon  land,  12. 

upon  personalty,  132. 
marriage,  73,  77-78.     (See  Marriaob.) 
mortgages,  of  land,  11. 
of  personalty,  132. 
sales  of  chattels,  with  reservation  of  title,  130. 
executor//, 

discharge  of,  187-191.     (See  Discharor.) 
evidence  of  assent  to,  151,  208. 
interpretation  of,  186. 
lex  fori  controls,  when.  6-10,  72-75,  162. 
liability  upon,  transitory,  151. 


INDEX.  643 

[References  are  to  SectionB.) 

CONTRACTS,  —  connnuea. 
executory, 

obligation  of,  180-186. 

criterion  to  distinguisli  remedy  from,  180,  206. 
goyerned  by  "  law  in  minds  of  the  parties,"  181. 
goyerned  by  lex  solutionis,  in  general,  181. 
in  case  of  contract  of  acceptor  or  maker,  182. 
in  case  of  contract  of  drawer  or  indorser,  183. 
in  case  of  contract  to  pay  interest,  184. 
in  case  of  contracts  and  coyenants  touching  land,  18& 
situs  of,  or  locus  contractus,  153-166. 
conflicting  yiews  as  to,  163-166. 
locus  contractus  analyzed,  154-156. 
locus  celebrationis,  157-168. 
locus  considerationis,  161-162. 
locus  solutionis,  169-160. 
of  contract  to  pay  money  generally,  163. 
of  insurance  contract,  166. 
of  negotiable  instruments,  164-166. 
acceptor's  contract,  164. 
drawer's  contract,  165. 
indorser's  contract,  166. 
maker's  contract,  164. 
validity  of,  167-179. 

void  in  the  making,  —  lex  celebrationis,  167-174. 
capacity,  72,  171. 
entry  into,  prohibited,  168. 
exemptions  in  bills  of  lading,  169. 
exemptions  in  insurance  poUcies,  170. 
formal  validity  of,  172-174. 

marriage,  77,  172.     {See  Marriage.) 
on  unstamped  paper,  172. 
required  to  be  in  writing,  173-174. 
Toid  in  the  performance,  —  lex  solutionis,  175. 
void  in  the  consideration,  —  lex  loci  considerationis,  176-1791 
executed  consideration,  177. 
executory  consideration,  176. 
failure  of  consideration,  177. 
legality  of  consideration,  17&-179. 
past  consideration,  177. 
sufficiency  of  consideration,  177 
usurious  consideration,  179. 
want  of  consideration,  177. 
CONTRIBUTION,  between  heirs  or  devisees,  112. 
CONTRIBUTORY  NEGLIGENCE,  197. 
CONVERSION  OF   CHATTELS,  195. 
CONVEYANCE.     (-See  Assignment  j  Contbactr.) 
of  land.  11-12. 


544  INDEX. 

[References  are  to  Sections.] 

CONVEYANCE,  —  continued. 

of  personalty,  128-150. 
CORPORATION, 

domicil,  or  situs  of,  67. 
legatee,  right  of,  to  be  a,  70,  144. 
officer  of,  right  of,  to  compensation  for  Bervicet,  151. 
stockholders  of,  statutory  liabilities  of,  10. 
CORRESPONDENCE,  situs  of  contract  by,  157-158.     (See  Contbacts.} 
COSTS,  decree  for,  in  personam,  95. 
COUNTER-CLAIM,  211. 
COVENANT, 

action  of,  upon  unsealed  instrument,  205. 
in  conveyance  of  land,  12,  185. 
of  title,  185. 

running  with  the  land,  185. 
to  relinquish  marital  rights  in  land,  174. 
COVERTURE.     {See  Married  Woman.) 
CREDIT,  to  be  given  foreign  judgments,  86,  89-94. 
CREDITORS, 

domestic,  preferred  to  foreign,  7-8. 

in  case  of  absolute  conveyance  of  chattels,  129. 
administration,  102-113. 
assignments  for  benefit  of  creditors,  134-135. 
assignments  in  bankruptcy,  138. 
chattel  mortgages,  132. 
guardianship,  114-116. 
marital  rights,  80-82. 
receivership,  117-119. 
sales  of  chattels,  reserving  title,  130. 
foreign,  upon  a  par  with  domestic, 
in  case  of  administration,  102-113. 
in  case  of  assignments  for  benefit  of  creditors,  135. 
in  case  of  assignments  in  bankruptcy,  138. 
in  case  of  chattel  mortgages,  132. 
garnishments  by,  125,  126,  209. 
CRIMES, 

disabilities  resulting  from,  not  recognized  abroad,  10. 
extradition  for,  204. 
local,  not  transitory,  203. 

may  be  made  transitory,  when,  203. 
situs  of,  204. 

accessaries,  204. 

adultery,  74. 

agency  set  in  motion,  taking  effect  in  another  State,  204. 

agents,  204. 

assault,  204. 

bigamy,  74. 


INDEX.  545 

[References  are  to  Sections.] 

CRIMES,  —  continued. 
situs  of, 

conspiracy,  204. 
false  pretenses,  204. 
forgery,  204. 
fornication,  74. 
homicide,  204. 

larceny,  where  goods  are  brought  into  another  State,  204. 
lewdness,  74. 

robbery,  where  goods  are  brought  into  another  State,  204. 
CURTESY,  of  husband,  12,  80. 
CUSTODY  OF   CHILDREN, 
decree  for,  in  rem,  96. 
guardian's  right  to,  115. 

D. 

DAMAGES, 

elements  entering  into  estimate  of,  208. 
interest  by  way  of,  208.     {See  Interest.) 
limits  placed  upon,  in  general,  160. 
limits  upon,  in  actions  for  tortious  death,  202. 
several  kinds  of,  198. 

compensatory,  10,  198. 
penal,  10,  198. 
punitive,  198. 
DANGEROUS   EMPLOYMENT,  assumption  of  risk  in,  197. 
DAYS  OF  GRACE,  182. 
DEATH  BY   WRONGFUL   ACT, 
action  for,  by  representative,  108. 

action  for,  where  injury  occurs  in  one  State,  and  death  in  another,  195i 
action  for,  in  general,  199-202. 
lex  delicti  controls,  200-202. 
limit  of  damages,  202. 
modern  tendency  to  liberality,  200. 
proper  plaintiff,  108,  201. 
time  within  which,  to  be  brought,  202,  210. 
DEBTS, 

effect  of  payment  of,  to  foreign  representative,  109. 
order  of  payment  of,  in  administration,  110. 
situs  of,  106,  121-126. 

actual,  with  debtor,  121-125. 
constructive,  or  legal,  with  creditor,  121-124. 
at  creditor's  actual  situs,  when,  121-124. 
at  creditor's  legal  situs,  or  domicil,  when,  121-124. 
for  purpose  of  administration,  124. 
for  purpose  of  attachment  and  garnishment,  125. 
for  purpose  of  taxation,  123. 
for  purpose  of  voluntary  transfer,  106,  122. 
35 


546  INDEX. 

[References  are  to  Secticms.] 

DECEDENT,  administration  of  assets  of,  102-113.    (See  Administbatiom  j 

Succession.) 
DECISIONS, 

as  evidence  of  foreign  laws,  213. 
value  of,  as  authority,  16. 
DECLARATIONS,  as  evidence  of  domicil,  64 
DECREES.     {See  Jddgments.) 

distinction  between,  in  rem  and  in  personam,  85-86. 
ex-territorial  effect  of,  86-96. 
for  alimony,  95. 
for  costs,  95. 

for  custody  of  infants,  96. 
for  divorce,  87-94.     (See  Divorck.) 
interest  upon,  184. 
priorities  of  foreign,  86. 

statute  of  limitations  applicable  to  foreign,  86. 
DEEDS, 

assignment,  11,  133-135.     {See  Assignmekt.) 
conveyance  of  chattels,  128-132. 
absolute  transfer  of,  128-130. 
chattel  mortgage,  132. 
sale,  reserving  title,  130. 
conveyance  of  lands,  11-12. 
consideration  for,  11. 
covenants  in,  12, 
interpretation  of,  12. 
validity  of,  12. 
DELIVERY,  PLACE  OF,  the  locus  celebrationis  of  bonds,  notes,  stc,  167, 

163,  164. 
DESCENT, 
of  land,  12. 

adopted  child  as  heir,  12. 
bastard,  subsequently  legitimated,  as  heir,  12. 
heirs,  who  to  be,  12. 
shares  of  parceners,  12. 
of  personalty,  139-141.     (^ee  Succession.) 
DESERTION, 

husband's,  gives  wife  right  to  choose  her  own  domicil,  47. 

effect  of,  upon  her  domicil,  where  husband  seeks  divorce,  61. 
wife's,  leaves  her  domicil  with  husband's,  48. 
DEVISE, 

capacity  to,  12,  13. 
capacity  to  receive,  12. 
interpretation  of,  12,  145. 
trusts  in,  12,  70,  144. 
validity  of,  12, 13. 
DIRECTORS  OF  CORPORATIONS, 
liabilities  of,  10. 


INDEX.  647 

[References  are  to  Sections.] 

DIRECTORS  OF  CORPORATIONS.  —  continued, 
right  of,  to  compensation  for  services  rendered,  161. 

DISABILITY.     (See  Capacity.) 

domicil  of  persons  under,  31-55.     (See  Domicil.) 
of  guilty  party  to  divorce  to  re-marry,  penal,  10,  74, 
of  penal  nature,  not  recognized  abroad,  10. 

DISCHARGE   OF   CONTRACTS,  187-191. 
by  operation  of  law,  in  general,  190. 

alteration  or  interlineation,  190. 

drawer's  or  indorser's,  183, 190. 

sureties,  181,  190. 
by  performance,  188. 
by  substituted  agreement,  189. 

merger,  189. 

release,  189. 
by  tender,  188. 
in  bankruptcy,  or  insolvency,  191. 

DISHONOR,  notice  of,  to  bind  drawer  or  indorser,  183. 190. 

DISTRIBUTION, 

of  bankrupt's  assets,  137-188. 

of  decedent's  assets,  102-113,  139-160.     {See  Adhimistbation  ;  Suc 
cession;  Wills.) 

DIVORCE, 

domicil  of  wife  for  purpose  of,  28,  48,  50-62. 
can  she  have  more  than  one,  28. 
deserted  wife  may  choose  her  own  domicil,  47. 
deserting  wife  domiciled  with  husband  for  purpose  of.  48,  51. 
domicil  of  wife  seeking,  50. 
domicil  of  wife,  whose  husband  seeks,  51. 
effect  of,  upon  marital  rights,  12. 
effect  of,  upon  wife's  domicil,  62. 
a  mensa,  62. 
a  vinculo,  52. 
invalid,  52; 
effect  of  foreign,  84-96. 
alimony,  95. 
costs,  95. 

custody  of  minor  children,  96. 
jurisdiction  to  decree,  dependent  on  domicil.  89-94. 
both  parties  domiciled  in  State  of,  89. 
duration  of  residence,  immaterial,  90. 
neither  party  domiciled  there,  90. 
only  one  party  domiciled  there,  91-94. 
recital  of,  effect  of,  89. 
proceedings  for,  quasi  in  rem,  87. 
res  in  proceedings  for,  88. 
fraud  in  procurement  of,  vitiates  decree.  89 


548  INDEX. 

[References  are  to  BectionB*] 

DIVORCE,  —  continued. 

grounds  for,  law  governing,  78,  84. 

guilty  party  to,  prohibited  to  remarry,  10,  78,  74. 

DOMICIL, 

abandonment  of,  65-66. 

area  of,  24. 

burden  of  proof  touching  change  of,  29. 

definition  of,  23. 

distinguished  from  citizenship  or  nationality,  21. 

distinction  how  far  recognized  in  United  States,  21. 
distinguished  from  residence,  20. 

ambassadors,  20. 

consuls,  20. 

students,  20. 
effect  of  change  of,  upon  interpretation  of  will,  148,  186. 
general  rules  touching,  27-30. 

no  person  without  a,  27. 

only  one,  at  a  time,  28. 

persons  sui  juris  may  change,  at  will,  30. 

retained  until  another  is  gained,  29. 
gives  jurisdiction  for  divorce,  84,  89-94. 
law  of.     (See  Lex  Domicilii.) 
matrimonial,  no  such  thing  as,  81. 
national,  quasi-national,  and  municipal,  19. 
of  apprentice,  37. 
of  corporations,  67. 

period  of,  for  purpose  of  divorce,  immaterial,  90. 
several  sorts  of,  31-64. 

of  origin,  31-34. 

of  adopted  child,  34. 
,  of  bastard,  33. 
of  child  born  legitimate,  32. 
of  foundling,  84. 
of  legitimated  child,  33, 

constructive,  35-55. 
of  idiots,  54. 
.  of  infants,  35-45. 

adopted  child,  44. 
bastard,  42. 

bastard  subsequently  legitimated,  43. 
emancipated  child.  45. 
legitimate  child,  37-41. 
father  alive,  37. 
father  dead,  mother  alive,  38. 
mother's  remarriage,  39. 
mother  and  father  both  dead,  40-41. 
power  of  guardian  over,  41. 
of  lunatics,  55. 


INDEX.  649 

[References  are  to  Sectioiia.] 

DOMICIL,  —  continued, 
constructive, 

of  married  woman,  46-53. 

generally  same  as  husband's,  46. 
of  deserted  wife,  47. 
of  deserting  wife,  48. 
of  divorced  wife,  52. 

of  wife  of  insane  or  incapacitated  Iiusband,  49. 
of  wife  seeking  divorce,  50. 
of  wife  wliose  husband  seeks  divorce,  51. 
of  wife  whose  marriage  is  void  or  voidable,  6& 
tf  choice,  56-66. 

actual  presence,  essential  to,  59-60. 

but  not  residence,  60. 
animus  manendi,  essential  to,  59,  61-64. 
change  of  mind  in  itinere,  62. 
commencement  of  animus,  62. 
death  in  itinere,  62. 
duration  of  the  intention,  63. 
evidence  of  the  intention,  64. 
circumstances,  64. 
declarations,  64. 
double  residence,  64. 
presumptions,  64. 

mere  presence,  64. 
retention  of  last,  64. 
future  intent,  not  suflBicient,  62. 
must  accompany  presence,  56,  62. 
what  animus  suflScient,  61-63. 
freedom  of  choice,  57-58. 

motives  for  selection  of,  immaterial,  67. 
of  exiles,  57. 

of  fugitives  from  justice,  57. 
of  invalids,  58. 
of  prisoners,  57. 
of  refugees,  57. 
DONATION  MORTIS  CAUSA,   131. 
DOWER   OF  WIFE, 

governed  by  lex  situs,  12,  80. 
jointure,  a  bar  to,  when,  147. 
DRAFT.     {See  Negotiable  Instruments.) 
operation  of,  as  assignment  of  fund,  181. 
DRAWER  OF  BILL.     (See  Negotiable  Instruments.) 
discharge  of,  188, 190. 
notice  of  dishonor,  etc.,  183. 
obligations  of,  183. 
situs  of  contract  of,  165. 
DUE  PROCESS  OF  LAW,  in  judicial  proceedings,  85-86 


550  INDEX. 

[References  are  to  Sectiaaa^] 

E. 

ELECTION, 

of  widow  to  take  jointure  or  dower,  147. 
to  take  under  a  will,  146,  147. 
EMANCIPATION,  effect  of,  upon  infant's  domicil,  46, 
EMPLOYER'S   LIABILITY, 

for  negligence  of  servants,  195-197. 

for  torts  by  fellow-servants,  169,  197. 

risk  assumed  by  servant,  when,  197. 

EQUITABLE   CONVERSION,  13. 

EVASION   OF   PROPER   LAW,  9,  77,  159. 

EVIDENCE, 

admissibility  of,  208. 

burden  of  proof,  to  establish  change  of  domicil,  29. 

of  animus  manendi,  to  create  domicil,  64. 

of  assent  to  contract,  151,  208. 

of  foreign  laws,  213-214. 

of  lex  loci  delicti,  in  case  of  torts,  193, 

of  presence,  to  create  domicil,  60. 

parol,  to  explain  indorser's  contract,  183,  208. 

presumptions,  177,  197,  208. 

conclusive,  177,  208. 

prima  facie,  177,  197,  208. 
stamped  contracts,  172,  210. 
statute  of  frauds,  173-174,  210. 
EXCEPTIONS  TO  OPERATION  OF  FOREIGN  LAWS,  5-18 
foreign  law  contra  bonos  mores,  9,  75,  152. 
foreign  law  penal,  10,  74,  152,  194. 
immovable  property,  11-13. 

injustice  or  detriment  to  people  of  forum,  7-8.     {See  Creditors.) 
interests  or  policy  of  forum  contravened  by  foreign  law,  6, 135, 137-138 
operation  of,  with  respect  to 

administration,  102-113.     (See  Administration.) 

adoption,  101. 

assignments  for  benefit  of  creditors,  135. 

assignments  in  bankruptcy,  138. 

capacity,  71-75. 

chattel  mortgages,  132. 

conveyances  of  personalty,  129. 

distribution  of  decedent's  estate,  139-141. 

executed  sales  of  chattels,  129. 
with  reservation  of  title,  180. 

executory  contracts,  6-10,  72-75,  162. 

guardianship,  114-116. 

legitimation,  97-100. 

marital  rights,  80-82. 


INDEX.  551 

[References  are  to  Sections.] 

EXCEPTIONS   TO  OPERATION  OF  FOREIGN  LAWS,  — eontinued. 
operation  of,  with  respect  to 
marriage,  73. 
receivership,  117-119. 
torts,  194-197. 
EXCHANGE,  RATE  OF,  on  foreign  contracts,  186. 
EXECUTOR,  powers  and  duties  of  foreign,  10^-113.    {See  Administka- 

tion). 
EXEMPTION, 

from  liability  in  bills  of  lading,  169. 
from  liability  in  insurance  contracts,  170. 
of  property  from  attachment,  etc..  126,  209. 

injunction  against  foreign  garnishment,  209. 
judgment  decreeing,  how  far  recognized  elsewhere,  209. 
when  part  of  obligation,  209. 
when  part  of  remedy,  209. 
EXILES,  domicil  of,  67. 

EXONERATION  of  decedent's  land  out  of  personalty,  and  vice  versa,  112. 
EXTRADITION  OF   CRIMINALS,  204. 

constructively  present  in  another  State,  and  there  committing  crime, 
204. 
EXTRATERRITORIAL  EFFECT, 

of  administration,  102-113.     {See  Administration.) 

of  adoption,  101.     (See  Adoption.) 

of  assignment  for  benefit  of  creditors,  133-135.     {See  Assigkhbht.) 

of  assignment  in  bankruptcy,  137-138.     (See  Assionhent.) 

of  contracts.     {See  Contkacts.) 

of  conveyances,  11-12,  127-1.32. 

of  crimes,  203-204.     {See  Crimes.) 

of  divorce,  87-94.     (See  Divorce.) 

of  donation  mortis  causa,  131. 

of  intestacy,  139-141.     {See  Spccession.) 

of  judgments  and  decrees,  85-86.     (See  Judgments.) 

of  legitimation,  97-100.     {See  Legitimacy.) 

of  marriage,  73,  77-78.     {See  Marriage.) 

of  mortgages,  11-12,  132. 

of  penal  laws,  10. 

of  torts,  192-202.     {See  Torts.) 

of  wills,  142-150.     (5ec  Wills.) 


FALSE   IMPRISONMENT,  196. 

FALSE  PRETENSES,  204.     {See  Crimes.) 

FATHER.     {See  Child.) 

by  adoption,  status  of,  101.     {See  Adoption.) 
domicil  of  child,  same  as  that  of,  32,  37. 


652  INDEX. 

[References  are  to  Sections.] 

FATHER,  —  continued. 

marriage  or  acknowledgment  of,  as  legitimating  bastard,  97-1001 

relation  of  child  and,  a  double  status,  97. 

rights  and  duties  of,  towards  child,  83. 
FELLOW-SERVANTS,  torts  by,  169,  197. 
FIDUCIARIES,  status  of,  102-118,  133-135,  137-138. 

administrators,  104-113.     (iS'e^  ADMiNik5TRATioN.) 

assignees  for  benefit  of  creditors,  133-135.    {See  Assignment.) 

assignees  in  bankruptcy,  137-138.     (.See  Assignment.) 

executors,  104-113.     {See  Administration.) 

guardians,  114-116.     [See  Guardian.) 

receivers,  117-118. 
FOREIGN  ADMINISTRATION.     {See  Administratiok.) 
FOREIGN  ADOPTION  LAWS.     {See  Adoption.) 
FOREIGN  ASSIGNMENTS.     (See  Assignments.) 
FOREIGN  CONTRACTS.    (5ee  Contracts.) 
FOREIGN  CREDITORS.     {See  Creditors.) 
FOREIGN  CRIMES.     (5ec  Crimes.) 
FOREIGN  GUARDIANS.     {See  Guardians.) 
FOREIGN  INDORSERS.     (5ec  Indorsers.) 
FOREIGN  JUDGMENTS.     (See  Judgments.) 
FOREIGN  LAWS, 

exceptions  to  operation  of.     {See  Exceptions.) 

exterritorial  effect  of.     {See  Extraterritorial  Effect.) 

pleading  and  proof  of,  212-214. 
FOREIGN  LEGITIMATION  LAWS.     (See  Legitimact.) 
FOREIGN  MARRIAGES.     (See  Marriage.) 
FOREIGN  RECEIVERS.     (See  Receivers.) 
FOREIGN  STATUS.     (See  Status.) 
FOREIGN  SUCCESSION.    (See  Succession.) 
FOREIGN  TORTS.     (See  Torts.) 
FOREIGN  WILLS.     (See  Wills.) 
FORGERY,  204.     (See  Crimes.) 
FORM, 

validity  of  contracts  in  point  of,  172-174. 

validity  of  marriages  in  point  of,  77,  172. 
FORUM,  law  of.     (See  Lex  Fori.) 
FOUNDLING,  original  domicil  of,  34. 
FRAUDS, 

effect  of,  upon  marriage,  78. 

effect  of,  in  procurement  of  foreign  divorce,  89. 

per  se,  in  assignments  for  benefit  of  creditors,  135. 

statute  of,  173-174,  210.     (See  Statute  of  Frauds.) 
FREEDOM  OF  WILL,  essential  to  domicil  of  choice,  57-68. 


INDEX.  653 

[References  are  to  Sectiou.] 

FUGITIVE  FROM  JUSTICE, 

domicil  of,  67. 

extradition  of,  204. 
FULL  FAITH  AND  CREDIT,  to  be  given  foreign  Judgments,  86, 89-94 
FUTURES,  validity  of  contracts  relating  to,  176. 


G. 

GAMING  CONTRACTS,  161,  176,  17& 
GARNISHMENT, 

exemptions  in  case  of,  129,  209. 

foreign,  how  far  recognized,  209. 

injunction  against,  in  another  State,  209. 

situs  of  debt  for  purpose  of,  125. 
GRACE,  DAYS  OF,  182. 
GUARANTOR.     (-See  Suretibs.) 
GUARDIAN, 

capacity  of  ward  to  settle  with,  71. 

decree  appointing,  in  rem,  96. 

effect  of  want  of  consent  of,  upon  ward's  marriage,  77. 

power  of,  to  change  ward's  domicil,  40-41. 

status  of,  114-116. 

with  respect  to  ward's  person,  115. 
with  respect  to  ward's  property,  116. 
GUILTY  PARTY  TO  DIVORCE,  prohibited  to  re-marry,  10,  73,  74 

a  decree  t»t  personam,  74. 

a  penal  disability,  10,  74. 

marriage  by,  73,  74. 

H. 

HEIRS, 

contribution  among,  112. 

interpretation  of  the  term  in  contracts  and  wills,  145-146, 186. 

who  are,  12. 
HERITABLE   BONDS,  112,  146. 
HIGH  SEAS, 

assignment  of  ship  upon,  120. 

collisions  upon,  195. 

conveyance  of  ship  upon,  120,  129. 

marriage  upon,  77. 

situs  of  cargo  of  ship  upon,  120. 

situs  of  ship  upon,  120,  129. 

torts  on  ships  upon,  195. 
HOLDER  FOR  VALUE,  of  negotiable  paper  who  Is,  ISSt^ 
HOME.     (See  Domicil). 
HOMESTEAD,     (See  Exemptiow.) 


554  INDEX. 

[References  are  to  SeotlaabJ 

HOMICIDE.  204.    {See  Cbimbs.) 
HOTCHPOT,  146. 
HUSBAND, 

authority  of,  over  wife,  79. 

curtesy  of,  12. 

distributive  share  of  wife  in  personalty  of,  81,  139-141.    (See  Suo 

CESSION.) 

dower  of  wife  in  lands  of,  80. 

effect  of  change  of  domicil  of,  upon  wife's  domicil,  28, 80, 46-53.    {Set 

DOMICIL.) 

marital  rights  of  wife  in  property  of,  80-82. 
payment  to,  discharges  debt  to  wife,  when,  188. 
release  by,  discharges  debt  to  wife,  when,  188. 
surety  for,  wife  as,  72. 


I. 

IDIOT,  domicil  of,  54. 

ILLEGITIMATE  CHILD.    (See  Babtaed  ;  Legitimaot.) 

IMMORAL   CONTRACTS,  9,  75,  152,  177. 

IMMOVABLES, 

assets  in  hands  of  heir,  110-112. 

assignment  of,  for  benefit  of  creditors,  11, 188. 

assignment  of,  in  bankruptcy,  137. 

charges  and  liens  upon,  12,  111. 

contract  to  convey,  11,  72,  174,  185. 

contribution  between  co-heirs,  112. 

conveyance  of,  11-12. 

covenants,  contained  in  deeds,  12,  174,  185. 

creditor's  right  to  subject  decedent's,  111. 

deeds  of,  validity  and  interpretation  of,  11-12. 

descent  of,  12. 

adopted  children,  12. 
legitimated  children,  12. 

devises  of,  12,  18. 

interpretation  of,  12,  145-148. 
validity  of,  12,  70,  80,  144. 

equitable  conversion,  13. 

exoneration  of,  out  of  personalty,  and  vice  verm,  IIX 

guardian's  powers  over  ward's,  116. 

marital  rights  in,  12,  80. 

effect  of  divorce  upon,  12. 

mortgage  of,  11. 

personal  representative's  rights  over,  106. 

torts  to,  local  or  transitory,  192,  195. 

what  are,  13. 
IMPEDIMENTS  TO  MARRIAGE,  73,78. 


INDEX.  555 

[References  are  to  Bectioiw.] 

IMPLIED  CONTRACTS,  161, 163. 
IMPRISONMENT, 

effect  of,  upon  dotnicil,  57. 
when  belonging  to  remedy,  207. 
IN  ITINERE, 

effect  upon  domicil  of  change  of  intent,  62. 
effect  upon  domicil  of  death,  62. 
marital  rights  in  personalty  acquired,  81. 
situs  of  contract  made,  169. 
IN  TRANSITU.     (-See  In  Itinere.) 
INCAPACITY.     (See  Capacity.) 
INCESTUOUS   MARRIAGES,  75. 
INDEFINITE  TRUSTS,  validity  of,  70,  144. 
INDORSER.     (See  Negotiable  Insteuments.) 
executed  contract  of,  165,  182. 

passes  title  to  indorsee,  how  far,  165,  182. 
validity  of,  165,  182. 
executor  or  administrator  as,  122, 124. 
executory  contract  of,  165. 
discharge  of,  183,  190. 

how  far  to  be  explained  by  parol  evidence,  183,  208i 
interest  upon,  184. 
obligation  of,  183. 
validity  of.     (5ee  Considebation.) 
for  accommodation, 

liability  of,  as  joint  maker,  182. 
situs  of  contract  of,  165. 
prior  indebtedness,  a  consideration  for  contract  o^  188. 
situs  of  contract  of,  165. 
INFANT, 

action  against,  206. 

adoption  of,  12,  44,  86,  101.    (See  Adoption.) 

capacity  of, 

for  business  generally,  71. 
to  contract,  72. 
to  make  a  will,  12,  70,  144. 
domicil  of,  30-45.     (5ee  Domicil.) 

guardian's  powers  and  duties  with  respect  to,  114-116.   (-Sec  6uabdiak.| 
legitimacy  of,  97-100.     (See  Legitimacy.) 
parents,  duty  of,  towards,  83. 
period  during  which  one  remains  an,  71. 
INSANE   PERSON, 
domicil  of,  55. 
domicil  of  wife  of,  49. 
INSOLVENCY, 

assignment  in,  137-138.     (See  Assigwmbwt.) 
discharge  in,  effect  of,  upon  contract,  191. 


556  INDEX. 

[References  are  to  Sectdona.] 

INSOLVENCY,  —  continued. 

distribution  of  decedent's  assets  in  case  of,  113. 
receivers  appointed,  in  case  of,  117-118. 
INSURANCE   CONTRACTS, 
assignment  of,  166. 
carrier's,  how  far  qualified  by  contract,  169. 

by  notice,  169. 
conditions  and  exemptions  in,  170. 
failure  to  pay  premiums,  170. 
insurable  interest,  170. 
interpretation  of,  186. 
misrepresentations,  170. 
situs  of,  166. 
suicide  of  insured,  170. 
validity  of,  170. 

validity  of  premium  notes  in  consideration  of,  176. 
INTEREST, 

as  damages  for  failure  to  pay  at  maturity,  208. 
obligation  to  pay,  in  general,  184. 

acceptor  or  maker,  184. 

drawer  or  indorser,  184. 

no  rate  of,  named,  after  maturity,  184. 

upon  coupon  notes,  184. 

upon  judgments,  184. 

upon  legacies,  113. 

upon  value  of  chattels  in  trover,  208. 
usurious,  179,  184. 
INTERLINEATION  OF  CONTRACT,  190. 
INTERPRETATION, 
of  contracts,  186. 

of  conveyances  of  personalty,  128. 
of  deeds,  12,  128. 
of  wills,  145-148,  186. 
of  wills  under  power  of  appointment,  150. 
INTESTATE, 

administration  of  property  of,  102-11.3.     {See  Administration.) 
succession  to  property  of,  12,  139-141.     (See  Succession.) 
INVALIDS,  domicil  of,  58. 
INVOLUNTARY  TRANSACTIONS,  situs  of,  17,  18. 

transfers  of  personalty  by  assignment  in  bankruptcy,  137-138. 

by  marriage,  81,  136. 

by  will,  70,  142-150.     (See  Wills.) 


J. 

JOINT  CONTRACT,  situs  of,  157,  182. 
JOINTURE,  a  bar  to  wife's  marital  rights,  147. 


INDEX.  657 

[References  are  to  Sections.] 
JUDGMENTS, 

by  or  against  personal  representatires,  effect  of,  elsewhere,  107. 
distinction  between,  in  rem  and  in  personam,  85-86. 
exterritorial  effect  of,  86-96. 

alimony,  96. 

costs,  95. 

custody  of  children,  96. 

divorce,  87-94.     (See  Diyosce.) 

when  penal,  10,  86. 
form  of,  pertains  to  remedy,  208. 
interest  upon,  184. 
priorities  of  foreign,  86. 

statute  of  limitations  applicable  to,  86.  * 

upon  plea  of  statute  of  limitations  or  of  frauds,  not  conclusive,  21(X 
JUDICIAL  SEPARATION,  effect  of,  upon  wife's  domicU,  62. 
JURISDICTION, 

in  adoption  cases,  86,  101. 

in  divorce  cases,  87-94.     {See  DiTOBCB.) 

in  exoneration,  112. 

in  marshalling  of  assets,  110,  112. 

in  personam,  85-86. 

in  rem,  85-86. 

recital  of,  in  decree  of  divorce,  89. 

situs  of  cliattels  for  purpose  of,  14,  120. 

situs  of  debts  for  purpose  of,  120,  121, 125. 


LAND,    (^ee  Immovables.) 

LAPSE,  of  bequest  or  devise,  147. 

LAPSE  OF  TIME,  effect  of,  upon  right  to  sue,  210.     (-See  Limitations. 

LARCENY,  goods  stolen  in  one  State,  brought  into  another,  204. 

LEASEHOLDS,  immovable  property,  13. 

LEGACY.     {See  Wills.) 

interest  upon,  113. 

interpretation  of,  145-148,  160,  186. 

validity  of,  70,  143-144. 
LEGAL  TENDER,  what  is,  188. 
LEGATEE, 

capacity  to  be  a,  70,  144. 

right  of,  to  be  paid  by  ancillary  administrator,  113. 
LEGITIMACY, 

a  permanent  status,  97. 

beneficial  to  child,  98,  100. 

child  born  in  lawful  wedlock,  98. 


558  INDEX. 

[References  are  to  Sections.] 

LEGITIMACY,  —conanuerf. 

child  born  in  unlawful  wedlock,  98. 
child  born  out  of  wedlock,  99-100. 

legitimated  by  intermarriage  of  parents,  99,  100. 

legitimated  otherwise  than  by  intermarriage,  100. 
subsequent  legitimation,  entitles  child  to  inherit,  when,  12. 

efifect  of,  upon  child's  original  domicil,  33. 

effect  of,  upon  child's  constructive  domicil,  43. 
LEGITIMATION.     (See  Legitimacy.) 
LETTER,  situs  of  contract  by,  157-168. 
LEX  DOMICILII,  when  controUing, 
capacity  in  general,  70-73. 

for  business,  71. 

to  contract,  72,  171. 

to  make  a  will,  70,  144. 

to  marry,  73,  74. 
exemptions  of  property  from  attachment,  etc.,  209. 
interpretation  of  contracts,  186. 

interpretation  of  wills  of  land  and  personalty,  12,  146-146,  160. 
involuntary  transfers  of  personalty, 

assignments  in  bankruptcy,  137-138.     {See  Assignment.) 

marital  rights,  80-82,  136. 

succession,  139-141.     (See  Succession.) 

will,  14^-150.     (See  Wills.) 
status  generally, 

adoption,  101.     (See  Adoption.) 

fiduciaries,  102-118.     (See  Fiduciabibs.) 

legitimacy,  97-100.     (See  Legitimacy.) 

marriage,  79-94.     (See  Marriage;  Divorce.) 
LEX  FORI,  when  controlling, 

administration  of  decedent's  assets,  102-113.     (See  Administration 

adoption,  101.     (See  Adoption.) 

assignments  for  benefit  of  creditors,  133-135.     (See  Assignment.) 

assignments  in  bankruptcy,  187-138.     (^ee  Assignment.) 

chattel  mortgages,  132. 

contracts  executory,  6-10,  72,  74,  162. 

crimes,  203-204. 

distribution  of  decedent's  estate,  139-141.     (See  Succession.) 

divorce,  grounds  of,  84. 

executors,  powers  and  duties  of,  102-113.     (See  Administration.) 

executed  sales  of  chattels,  129. 

reservations  of  title,  130. 
guardian,  relation  of,  to  ward,  114-116.     (See  Guardian.) 
legitimation,  97-100.     (See  Legitimacy.) 
marriage  contract,  73-76. 
marital  rights,  79-82. 
receivers,  status  of,  117-119. 
remedy,  206-211.     (See  Remedy.) 


INDEX.  569 

[References  are  to  Bectiooa.] 

LEX  TORI,— continued. 

substitution  of,  for  proper  law,  6-14. 

contra  bonos  mores,  9. 

immoTables,  11-13. 

injustice  to  people  of  forum,  7-8. 

policy  of  forum,  6. 
torts,  194,  196,  200. 

LEX  LOCI  CELEBRATIONIS,  when  controlling, 
capacity  to  contract,  72,  171. 
capacity  to  marry,  73-74. 
formal  yalidity  of  contract,  172-174. 
formal  validity  of  marriage,  77. 
substantial  validity  of  contract,  168-170. 

validity  of  conveyances  of  personalty,  128-136.   (See  Absignmbnt.J 
yalidity  of  marriage,  78. 
what  is  the  locus  celebrationis  of  contracts,  157-158. 
LEX  LOCI   CONSIDERATIONIS,  when  controlling, 
validity  of  contracts,  11,  128, 176-179. 
what  is  locus  considerationis,  161-162. 
LEX  LOCI  CONTRACTUS,  when  controUing, 
executed  contracts, 

assignments  for  benefit  of  creditors,  138-136.    (See  Absionmbnt.) 

chattel  mortgages,  182. 

conveyances  of  chattels,  128. 

donations  mortis  causa,  131. 

exemptions  in  bills  of  lading,  169. 

exemptions  in  insurance  policies,  170. 

marriage,  73,  77-78. 

nuptial  settlements,  80-82. 

sales  of  chattels,  128. 

with  reservation  of  title,  130. 
executory  contracts,  158-191. 
locus  contractus,  153-166. 

conflicting  views  as  to,  163. 
true  view,  must  be  analyzed,  154. 
locus  celebrationis,  157-158. 
locus  considerationis,  161-162. 
locus  solutionis,  159-160. 
LEX  LOCI   DELICTI,  when  controlling. 

actions  for  torts  generally,  195-202.     {See  Toets.) 
actions  for  death  by  wrongful  act,  108,  195,  199-202.     (See  Death.) 
crimes,  203-204.     (-Sec  Crimes.) 
LEX  LOCI  REI  SIT^.     {See  Lex  Fori.) 
LEX  LOCI   SOLUTIONIS,  when  controlling, 
discharge  of  contracts,  187-191. 
obligation  of  contracts,  180-186. 

validity  of  contracts,  whose  performance  is  prohibited,  77,  175. 
what  is  locus  solutionis,  159-160. 


660  INDEX. 

[References  are  to  Sectiona.] 

LEX  SITUS.     (S-ee  Lex  Fori.) 

LICENSE,  effect  of  omission  of,  upon  marriage,  77. 

LIENS, 

of  foreign  judgments,  86. 

upon  chattels,  128,  132,  205. 

upon  lands,  11-12,  111,  206. 
LIMITATIONS,   STATUTE   OF, 

actions  on  foreign  judgments,  86. 

actions  for  tortious  death,  202,  210. 

adverse  possession  of  chattels,  210. 

application  of,  generally,  210. 

effect  of  partial  payments,  210. 

effect  of  written  acknowledgment,  210. 

no  action  to  be  brought  after  lapse  of  time,  210. 

transaction  void  by  prescription,  210. 

judgment  for  defendant,  upon  plea  of,  not  conclusive,  210. 
LIQUOR,  contracts  to  pay  for,  161,  176,  178. 
LOANS   OF  MONEY.     {See  Usury.) 
LOTTERY,  contracts  relating  to,  161,  176,  178. 
LUNATIC, 

domicil  of,  55.     {See  Dohicil.) 

domicil  of  wife  of,  49. 

M. 

MAINTENANCE, 

contracts  void  for,  168,  176,  176.    {See  Champbrtous  Contracts.} 
of  children,  parent's  duty  as  to,  83. 
of  wife,  95. 
MARITAL, 

powers  of  husband,  79. 
rights  in  land,  12,  80. 

effect  of  covenant  to  surrender,  174. 
rights  in  personalty,  81-82. 

in  absence  of  nuptial  agreement,  81. 
in  case  of  nuptial  agreement,  82. 
union  or  status,  79-94.     {See  Marriage  ;  Divorce.) 
MARRIAGE, 

by  divorced  person  prohibited  to  remarry,  73,  74. 
contract  for,  77. 
contract  of,  77-78. 

effect  upon,  of  evasion  of  domiciliary  law,  9. 
of  consanguinity  and  aflSnity,  9,  73,  76. 
effect  of,  upon  infant's  domicil,  45. 
upon  woman's  domicil,  46-53. 
validity  of,  77-78. 

in  point  of  form,  77. 

in  point  of  substance,  78. 


INDEX.  561 

[References  are  to  Sections.] 

MARRIAGE,  —  continued. 
incestuous,  9,  76. 

legitimation  by,  97-100.     (See  Leoitiuact.) 
miscegenation,  73. 
polygamous,  9,  76. 
status  of,  79-96. 

authority  of  husband  over  wife,  79. 

commencement  of,  79. 

dissolution  of,  84-96.     (See  Divorce.) 
grounds  for,  governed  by  lex  fori,  84. 

duality  of,  97. 

incidents  of,  80-83. 

marital  rights,  80-82,  136. 
rights  and  duties  of  parents  to  offspring  of.  Si 
transfer  of  personalty  by,  80-82,  136. 
will  revoked  by,  149. 
MARRIED   WOMAN, 
action  against,  206,  206. 
authority  of  husband  over,  79. 
capacity  of,  to  be  a  trustee,  71. 
capacity  of,  to  contract,  72,  205. 
capacity  of,  to  make  a  will,  12,  70,  144,  160. 
capacity  of,  to  transfer  insurance  policy,  166. 
charge  upon  separate  estate  of,  12,  205. 

debt  of,  when  discharged  by  payment  to,  or  release  by,  husband,  188. 
distributive  share  of,  in  husband's  personalty,  81,  139-141.     (See  Sco 

CESSION.) 

divorce  of,  84-96.     (.See  Divorce.) 
domicil  of,  28,  30,  46-53.     (See  Domicil.) 
dower  of,  12. 
jointure  of,  147. 

marital  rights  of,  in  husband's  personalty,  81-82. 
marital  rights  of  husband  in  personalty  of,  81-82. 
support  of  child  by,  83. 
MARRY, 

capacity  to,  73.     (See  Capacity.) 
contract  to,  77. 
MARSHALLING  OF   ASSETS  in  administration,  110. 
MASTER, 

domicil  of,  is  domicil  of  apprentice,  37. 
liability  of, 

for  malicious  acts  of  servants,  197. 
for  negligence  of  servants,  196-197. 
for  torts  by  fellow-servants,  169,  197. 
risk  assumed  by  servant,  when,  197. 
of  ship,  authority  of,  158, 
MATRIMONIAL  DOMICIL,  no  such  thing  as,  81 
MATRIMONY.     (See  Marriage.) 

36 


662  INDEX. 

[References  are  to  Sections.] 
MERGER,  of  contract  by  substituted  agreement,  189. 
MERTON,   STATUTE   OF.  12. 
MINISTER,  domicil  of  foreign,  20. 
MINORITY.     {See  Infant.) 
MISCEGENATION,  73. 
MORTGAGE, 

of  chattels,  132. 

of  lands,  11-12. 

MORTMAIN,  STATUTES  OF,  not  restrictive  of  testamentary  capacity, 

70,  144. 
MOTHER.     {See  Child.) 

by  adoption,  status  of,  101.     (See  Adoption.) 
domicil  of  child,  when  that  of,  38,  39,  42. 
duality  of  relation  of  child  and,  97. 
duty  of,  to  support  child,  83. 
MOVABLES, 

application  of  lex  delicti  to,  in  case  of  torts,  192,  195. 
application  of  lex  domicilii  to, 

assignments  in  bankruptcy,  137-138. 

guardian  and  ward,  114-116.     (See  Guardian.) 

marital  rights,  80-81. 

succession,  139-141.    (See  Succession.) 

taxation,  123. 

wills,  142-150.     (See  Wills.) 
application  of  lex  loci  contractus  to, 

absolute  conveyances  or  sales,  128. 

assignments  for  benefit  of  creditors,  133. 

assignments  of  chose  in  action,  122,  13S. 

chattel  mortgages,  132. 

donations  mortis  causa,  131. 

marriage  settlements,  82. 

sales,  reserving  title,  130. 

vendor's  lien  or  privilege,  128. 
application  of  lex  situs  et  fori  to, 

absolute  conveyances,  129. 

administration,  102-118.     (See  Administration.) 

assignments  for  benefit  of  creditors,  134-135. 

assignments  in  bankruptcy,  137-138. 

assignments  of  chose  in  action,  122,  134-135,  137-188. 

chattel  mortgages,  132. 

guardian  and  ward,  114-116.     {See  Guardian.) 

liens,  128,  132. 

marital  rights,  80-82. 

receivers,  118-119. 

sales,  reserving  title,  130. 

succession,  139. 

wills,  70,  144. 


INDEX.  66b 

[Referenoea  are  to  Sections.] 

MOVABLES,  —  continued. 
situs  of,  119-125. 
chattels,  120. 
debts,  121-125. 

for  purposes  of  administration,  124. 
for  purposes  of  assignment,  122. 
for  purposes  of  attachment  and  garnishment,  126i 
for  purposes  of  taxation,  123. 
ships  upon  high  seas,  120,  195. 
MUNICIPAL   DOMICIL, 

distinguished  from  national,  119. 
is  existence  of,  essential  to  national  domicil  ?  24. 
MURDER,  204.     {See  Crimes.) 

N. 

NATIONAL  DOMICIL, 

distinguished  from  municipal,  19. 
is  existence  of  municipal  domicil  essential  to  f  24. 
NATURE   OF  CONTRACT,  law  governing,  181,  205. 
NECESSARIES,  duty  of  parent  to  supply  infant  child  with,  83. 
NEGLIGENCE, 

committed  in  one  State,  injury  resulting  in  another,  195. 
comparative,  197. 
contributory,  197. 

death  in  one  State  resulting  from  injury  in  another,  195. 
presumption  of,  197. 

validity  of  contracts  exempting  from  liability  for,  169. 
NEGOTIABLE  INSTRUMENTS.    (5ee  Indorser  ;  Contracts.) 
accommodation  indorsers, 
liability  of,  182. 
situs  of  contract  of,  165. 
days  of  grace,  182. 
defenses  to.  182-183,  210,  211. 
interest  upon,  184. 

merger  of  prior  indebtedness  by  receipt  of,  189. 
notice  of  dishonor,  183. 
obligations  of  acceptor,  182. 
of  drawer,  183. 
of  indorser,  183. 
of  maker,  182. 
operation  of  bill  or  check,  as  assignment  of  fund,  181. 
parol  explanation  of  indorser's  contract,  183,  208. 
pleas  in  actions  upon, 

by  acceptor  or  maker,  182,  210,  211. 
by  drawer  or  indorser,  183,  211. 
presentment,  183. 
protest,  188.  ' 


564  INDEX. 

[References  are  to  Sections.] 

NEGOTIABLE  INSTRUMENTS,  —  continued. 

purchaser  of,  for  value,  who  is,  182. 

situs  of,  121-125,  164-165. 

validity  of.     (^ee  Consideration.) 
in  point  of  form,  173. 
NEGROES,  marriages  of  whites  and,  73, 
NON-RESIDENT, 

creditors.     (See  Cbeditobs.) 

defendants, 

in  divorce  causes,  87-94.     (5ee  Divorce.) 
in  proceedings  in  personam,  85-86. 
in  proceedings  in  rem,  85-86. 

transfer  of  personalty  of.     {See  Movables.) 
NOTE.     {See  Negotiable  Instruments  ;  Contbacts.) 

interest  upon,  184. 

merger  of  prior  indebtedness,  by  receipt  of,  189. 

situs  of,  163-165. 
NOTICE, 

carrier's  liability  as  insurer  qualified  by,  169. 

of  assignment  of  chose  in  action,  182,  211. 

of  dishonor  of  negotiable  paper,  183,  190. 
NUPTIAL  AGREEMENT, 

with  respect  to  chattels,  82. 

with  respect  to  land,  80. 

o. 

OBLIGATION  OF  CONTRACT, 

criterion  to  distinguish  remedy  from,  180,  206. 
nature  of,  180. 
particular  contracts, 

acceptor's  contract,  182. 
contracts  touching  land,  185. 
contracts  to  pay  interest,  184.     {See  Interest.) 
covenants  running  with  land,  185. 
drawer's  contract,  183. 
indorser's  contract,  183. 
maker's  contract,  182. 
OFFENSES,  203-204.     {See  Crimes.) 

OFFER,  place  of  acceptance  of,  the  locus  celebrationis  of  contract,  128, 157 
ORDER  OF  PAYMENT.     (See  Priority.) 
ORDER  OF  PUBLICATION, 

how  far  sufficient  in  divorce  causes,  89,  91-94. 
insufficient  for  proceedings  in  personam,  86. 
sufficient  for  proceedings  in  rem,  85. 
ORIGIN, 

domicil  of,  31-34.     (See  Domioil.) 
of  private  international  law,  1. 


INDEX.  565 

[Beferencea  are  to  Sectiona.] 

P. 

PARENT.     (See  Child.) 

PAROL  CONTRACTS,  validity  of,  173-174,  210. 

PAROL  EVIDENCE, 

to  explain  indorser's  contract,  183. 

to  explain  written  contract,  208. 
PARTIAL  PAYMENTS,  effect  of,  upon  statute  of  limitations,  2ia 
PARTNERS, 

authority  of,  to  bind  firm,  168. 

liability  of,  for  firm  debts,  181. 

sharing  in  profits  creates,  181. 

some  of  whom  residents,  lex  fori  substituted  for,  when,  8. 
in  case  of  discharge  in  bankruptcy,  191. 
PASSENGER,  liability  of  carrier  to,  for  agent's  assault,  197.   {See  Cakhier  [ 
PAYMENT, 

effect  of,  in  discharging  contract,  188. 

effect  of  partial,  upon  statute  of  limitations,  210. 

place  of,  the  locus  solutionis  of  bond  or  note,  163,  164. 
of  drawer's  or  indorser's  contract,  166. 
PENAL  DAMAGES  FOR  TORTS,  distinguished  from  punitive,  10, 198. 
PENAL  LAWS,  not  enforceable,  10,  74,  194. 
PENALTY,  effect  of  foreign  judgment  for,  10,  86. 
PERFORMANCE   OF  CONTRACT, 

as  discharge,  188. 

effect  of  tender  of,  188. 

law  of  place  of,  controls  contract,  when,  154-165, 175, 180-191. 
discharge  of  contract,  187-191. 
obligation  of  contract,  180-186. 
validity  of  contract,  175. 

place  of,  159-160,  16^-166. 

prohibited,  175. 
PERPETUITIES,  testamentary  dispositions  creating,  12,  70,  144. 
PERSONAL  REPRESENTATIVE,  102-113.     (See  Administhation.) 
PERSONALTY.    {See  Movables.) 
PERSONS, 

capacities  of,  70-75.     {See  Capacity.) 

situs  of,  18-66. 
actual,  18. 
legal,  or  domicil,  19-66.     {See  Dohicil.) 

status  of,  68-96.     (See  Status.) 
PLEADING, 

governed  by  lex  fori,  207. 

of  foreign  laws,  212. 
POLICY  OF  FORUM,  lex  fori  substituted  for  proper  law,  because  of,  6 
iSee  Lex  Foui  ' 


566  INDEX. 

[References  are  to  Sections.] 

POLICY  OF  INSURANCE.    (See  Insurangk  Contractb.) 

POLYGAMOUS   MARRIAGES,  74,  75. 

POST-NUPTIAL   SETTLEMENTS,  80-82. 

POWER   OF  APPOINTMENT,  wills  under,  150. 

PRECEDENTS,  value  of,  16. 

PREFERENCE   OF   CREDITORS,  in  assignments,  135. 

PRESCRIPnON,  transactions  void  by,  210.     (See  Limitations.) 

PRESENCE, 

essential  to  domicil  of  choice,  59-60. 

evidence  of  domicil,  when,  64. 
PRESENTMENT,  of  negotiable  paper,  183. 
PRESUMPTIONS, 

as  to  domicil,  64. 

as  to  existence  of  common  law  in  another  State,  214. 

as  to  foreign  laws  in  general,  214. 

as  to  negligence,  197. 

as  to  place  of  performance  of  contract,  159-160,  163-166. 
PRETERMITTED   CHILD,  will  revoked  by  birth  of,  wlien,  149. 
PRINCIPAL  AND   AGENT.     (See  Agent  ;  Master.) 
PRINCIPAL  AND   INTEREST.     (See  Interest.) 
PRINCIPAL  AND   SURETY.     (See  Sdrbties.) 
PRIORITY, 

of  debts,  in  administration,  110. 

of  foreign  judgments,  86. 
PRIVATE   INTERNATIONAL   LAW,  distinguished  from  public,  2. 
PROBATE,  decree  of,  in  rem,  86. 
PROCESS, 

actual  service  of,  required  in  proceedinsrs  in  personam,  85-86. 

constructive  service  of,  sufficient  for  proceedings  in  rem,  85-86. 

of  arrest  in  civil  cases,  207. 

of  law  in  judicial  proceedings,  85-86. 

to  commence  an  action,  207. 
PROMISE.     (See  Contracts.) 

of  marriage,  77. 
PROMISSORY  NOTE.     (See  Negotiable  In8TR0ment8.) 

interest  upon,  184. 

merger  of  prior  debt  in,  189. 

situs  of,  163-165. 
PROOF.     (See  Evidence.) 
PROPER  LAW, 

meaning  of  term,  5. 

what  is  the  "  proper  law  "  governing, 

administration,  102-113.     (See  Administration.) 
adoption,  101.     (See  Adoption.) 

assignments  for  benefit  of  creditors,  133.     (See  Assignment.) 
assignments  in  bankruptcy,  137-138.     (See  Assignment.) 


INDEX.  667 

[Beferencea  are  to  Sectiona.] 

PROPER   LAW,  — continued. 

what  is  the  "  proper  law  "  governing, 
assignments  of  chose  in  action,  122. 
capacity,  70-76. 

for  business  generally,  71. 
to  contract,  72. 
to  make  a  will,  70,  144. 

to  make  a  will  under  power  of  appointment,  150. 
to  marry,  73-76. 
contracts,  executory.     (Siee  Contracts.) 

discharge  of,  187-191.     {See  DiscHARaB.) 
interpretation  of,  128,  186. 
obligation  of,  180-186.     (5«e  Obliqation.) 
validity  of,  167-179. 

void  in  the  consideration,  176-179.    (See  Consideration.) 
void  in  the  making,  168-174. 
capacity,  72,  171. 
entry  into  prohibited,  168. 
exemptions  in  bills  of  lading,  169. 
exemptions  in  insurance  policies,  170. 
formal  validity,  171-174. 
stamped,  172. 
statute  of  frauds,  173-174. 
void  in  the  performance,  175. 

champertous  contracts,  168,  175,  176. 
in  restraint  of  trade,  175. 
promise  of  marriage,  77. 
conveyances  of  land,  11-12, 
conveyances  of  personalty,  128. 
crimes,  203-204. 
curtesy,  12,  80. 
descent,  of  land,  12. 
devise  of  land,  12,  145-148, 150. 
divorce,  87-94.     (See  Divorce.) 
donations  mortis  causa,  131. 
dower,  12,  80. 

guardian  and  ward,  114-116.     (See  GtTARDiAir.) 
legacies,  70,  142-150.     (-See  Wills.) 
legitimacy,  97-100.     (See  Legitimacy.) 
legitimation,  98-100.     (-See  Legitimacy.) 
marital  rights,  80-82. 

marriage  contract,  73-78.     (See  Marriage.) 
marriage  status,  79-96.     (•See  Marriage.) 
mortgages,  11-12,  132. 
nuptial  contracts,  80-82. 
receivers,  117-119. 
remedies,  205-211.     (5ee  Remedy.) 
sales  of  chattels,  128. 
reserving  title,  130. 


568  INDEX. 

[References  are  to  Sections.] 

PROPER  LAW,— continued. 

what  is  the  "  proper  law  "  governing, 
status.     {See  Status.) 
succession,  139-141.     {See  Succession.) 
taxation  of  personalty,  123. 
torts,  192-202.     {See  Tokts.) 
wills,  12,  142-150.     {See  Wills.) 
PROTEST,  of  negotiable  paper,  183,  190. 

PUBLIC  INTERNATIONAL  LAW,  distinguished  from  private,  2. 
PUBLICATION,   ORDER  OF, 

how  far  sufficient  in  divorce  causes,  89,  91-94. 
insufficient  for  proceedings  in  personam,  85-86. 
sufficient  for  proceedings   in  rem,  85-86. 
PUNITIVE  DAMAGES,  distinguished  from  penal  damages,  198. 


Q. 

QUANTUM  MERUIT,  liability  upon,  151,  163. 

QUASI-CONTRACTS,  10,  151,  163. 

QUASI  IN  REM,  divorce  a  proceeding,  87,  91. 


R. 

RATE  OF  EXCHANGE,   186. 

RATE   OF  INTEREST.     (-See  Interest.) 

RATIFICATION,  of  agent's  contract,  158. 

REAL  PROPERTY.     {5ee  Immovables.) 

RECEIVERS, 

status  of,  117-118. 

suits  by  and  against,  118. 

title  of,  to  personalty  elsewhere,  15,  117. 
RECITAL  OF  JURISDICTION,  in  foreign  decree  of  divorce,  1 
RECORDATION,  of  transfers  of  personalty,  129-135. 
RECOUPMENT,  211. 
REFUGEES,  domicil  of,  57. 
RELEASE, 

discharge  of  contract  by,  189. 

by  husband,  as  discharge  of  debt  to  wife,  188. 

of  marital  rights  in  land,  174. 
RELIGIOUS  RITES,  effect  of  omission  of,  upon  marriage,  77. 
REMEDY, 

action,  form  of,  205. 
against  infant,  206. 
against  married  woman,  205,  206. 
assumpsit  upon  sealed  contract,  205. 
by  assignee  of  chose  in  action,  206. 


INDEX.  669 

[References  are  to  Sections.] 

REMEDY,  —  continued. 
action,  form  nf, 

covenant  upon  unsealed  contract,  205. 
parties  to,  205-206. 
criterion  to  distinguish  obligation  from,  180,  206. 
damages,  elements  entering  into  estimate  of,  20& 
evidence,  208.     (See  Evidence.) 
exemption  lavrs,  209.     {See  Exbmptioh.) 
pleadings,  207. 
practice,  rules  of,  207. 
presumptions  of  law,  208. 

if  conclusive,  matter  of  substance,  208. 
if  prima  facie,  matter  of  evidence,  208. 
process,  207.     {See  Pbockss.) 

of  arrest,  207. 
set-off,  211. 
situs  of,  205-211. 
special  statutory,  10,  205. 
statute  of  frauds,  172-174,  210. 
statute  of  limitations,  210.     {See  Limitations.) 
adverse  possession  of  chattels,  210. 
claim  void  by  prescription,  210. 
no  action  to  be  brought,  210. 
REPORTS  OF  ADJUDGED  CASES,  as  evidence  of  foreign  laws,  2ia 
RESERVATION  OF  TITLE,  sale  of  chattels,  with,  130. 
RESIDENCE, 

as  evidence  of  domicil,  64. 
co-founded  with  domicil,  20,  21. 

identical  with  domicil  in  United  States,  21. 
distinguished  from  domicil  generally,  20. 
double,  effect  of,  upon  domicil,  64. 
effect  of,  upon  rights  of  creditors.     ( See  Crkditobs.) 
not  essential  to  domicil  of  choice,  60. 
suits  against  defendants  with,  elsewhere,  85-94. 
RESTRAINT  OF   TRADE,  contracts  in,  175. 
REVENUE  LAWS,  no  exterritorial  force  given  to,  9, 172. 
REVOCATION  OF  WILLS,  149. 

s. 

SALES, 

of  land,  11-12,  72,  174,  185.     {See  Iumovablbs.) 
of  personalty,  128-130. 

as  between  the  parties,  128. 
as  to  third  persons,  129. 
executory.     (See  Cohteacts.) 
warranty  implied  in,  181. 
with  reservation  of  title,  130. 


570  INDEX. 

[Beferenoes  are  to  Sections.] 

SCIENTER,  proof  of,  in  action  for  tort,  196,  197. 

SCROLL,  as  a  seal,  206. 

SEAL, 

action  upon  contract  under,  206- 
consideration  imported  by,  161,  177,  207. 
release  of  contract  under,  189. 
scroll,  as  a,  205. 
what  is  a,  205. 
SEPARATE   ESTATE,  charge  upon  wife's,  12,  205. 
SEPARATION,  effect  of  judicial,  upon  wife's  domicil,  62. 
SERVICES,  implied  contract  to  pay  for,  151,  163. 
SET-OFF, 

effect  of,  as  a  defense,  211. 
validity  of  counter-claim,  211. 
SETTLEMENTS,  effect  of  marriage,  80,  82. 
SHAREHOLDERS  OF  CORPORATIONS,  liability  of,  la 
SHIP   UPON   HIGH   SEAS, 
collision,  196. 
conveyance  of,  129. 
master,  authority  of,  158. 
situs  of,  120. 
torts  upon,  196. 
SICK  PERSONS,  domicil  of,  58. 
SITUS.     {See  Pkopek  Law.) 

basis  of  private  international  law,  4. 

law  of,  identical  with  lex  fori.     (See  Lex  Fori.) 

of  contracts .     { See  Contracts.  ) 

of  corporations,  67. 

of  crimes,  203-204.     {See  Cbihes.) 

of  debts,  121-125. 

for  purpose  of  administration.     {See  Administration. 
for  purpose  of  assignment,  122. 
for  purpose  of  attachment  and  garnishment,  125. 
for  purpose  of  taxation,  128. 
of  land,  11-13.     {See  Immovables.) 
of  marriage  contract,  73-78.     {See  Marriage.) 
of  negotiable  paper,  121-125,  164-165,  182-183. 
of  personalty,  14-15,  119-126.     (See  Movables.) 
of  persons,  17-18,  19-66. 
actual,  18. 

legal,  or  domicil,  19-66.     {See  Domicil.^ 
of  remedy,  205-211.     (^ee  Rbmbdt.) 
4  status,  68-118. 

administrators,  102-113.     {See  Administration.) 
adoption,  101. 

assignee  for  benefit  of  creditors,  133-136. 
assignee  in  bankruptcy,  137-138. 


INDEX.  671 

[References  are  to  Sectiona.] 

SITUS,  — continued, 
of  status, 

capacity,  69-75.     (See  Capacity.) 
executors,  102-113.     (See  Administration.) 
guardians,  114-116.     (See  Giiabdian.) 
legitimacy,  97-100.     {See  Legitimacy.) 
marriage,  76-96.     (jSee  Makriage;  Divorcb.) 
receivers,  117-118. 
of  succession,  12,  139-141.    (6'ee  Succession.) 
of  torts,  192-202.     ( See  Torts  . ) 
of  wills,  12,  142-150.     (See  Wills.) 
SLAVERY,  contracts  relating  to,  9,  177,  178. 
SLAVES,  regarded  as  immovables,  when,  13. 
SLEEPING-CAR  COMPANY,  a  carrier,  197. 
SOLEMNITIES, 

of  marriage,  77,  172. 
of  other  contracts,  172-174. 
STAMP  LAWS,  effect  of,  upon  contracts,  172. 
STATUS, 

change  of  person's  situs  does  not  usually  affect  his,  15. 

except  in  cases  of  local  and  temporary,  96, 114-118. 
definition  of,  68. 
law  governing,  68-118. 
adoption,  101. 

capacity,  69-75.     (See  Capacity.) 
fiduciaries.  102-118. 

administrators,  102-113.     (See  Administration.) 
assignees  for  benefit  of  creditors,  1.33-135. 
assignees  in  bankruptcy,  137-138. 
executors,  102-113.     (See  Administration.) 
guardians,  114-116.     (See  Guardian.) 
receivers,  117-118. 
legitimacy,  97-100.     (See  Legitimacy.) 
marriage,  73-96.     (See  Marriage  ;  Divorcb.) 
STATUTES, 

of  frauds,  173-174,210. 
of  limitations,  210.     (See  Limitations.) 
presumptions  as  to  foreign,  214. 
proof  of  foreign,  213. 
special  remedies  by  foreign,  10. 
STOCK,  situs  of,  121-125.     (See  Debts.) 
STOCKHOLDERS  OF  CORPORATION,  liabilities  of,  10. 
STUDENTS, 
domicil  of,  20. 
right  of,  to  vote,  20. 
SUBSTITUTED  PROCESS, 

how  far  sufficient  in  divorce  causes,  89,91-94. 


672  INDEX. 

[References  are  to  Sections.] 

SUBSTITUTED  PROCESS,  —  contmued. 

insufficient  for  proceedings  in  personam,  85-8d 
sufficient  for  proceedings  in  rem,  85-86. 
SUCCESSION.     (See  Administration.) 
to  land,  12. 
to  personalty,  139-141. 

capacity  of  distributees  to  take,  140. 
bastards,  140. 
children  by  adoption,  12. 
collaterals  of  half-blood,  140. 
legitimated  child,  12. 
distributees,  who  are,  140. 

shares  of,  140. 
titles  of  administrator  and  distributee  contrasted,  189. 
SUIT.     <A!>ee  Action.) 
SUMMONS.     (See  Pkocbss.) 
SUNDAY, 

contracts,  not  contra  bonos  mores,  9. 
validity  of  contracts  made  on,  168. 
validity  of  contracts  to  be  performed  on,  175. 
SUPPORT, 

of  child,  duty  of  parents  as  to,  83. 
of  wife,  duty  of  husband  as  to,  79,  95. 
SURETIES, 

discharge  of,  181,  190. 
married  women  as,  72. 
obligatioD  of  joint,  181,  182. 


T. 

TAXATION, 

as  evidence  of  domicil,  64. 

situs  of  chattels  for  purpose  of,  123. 

situs  of  debts  for  purpose  of,  123. 
TELEGRAM,  situs  of  contract  by,  157. 

TELEGRAPH  COMPANY,  exemption  of,  from  liability  for  mistakes,  169 
TENDER   OF  PERFORMANCE,  effect  of,  188. 
TERMS   FOR  YEARS,  immovable  property,  13. 
TESTAMENTARY  DISPOSITIONS.     (5ee  Wills.) 
TESTAMENTARY  GUARDIAN,  right  of,  to  change  ward's  domicU,  40-41 

(See  Guardian.) 
TORTS, 

actions  for,  local  or  transitory,  192. 

common  law  or  statutory,  193. 

damages  for,  compensatory,  penal  or  punitive,  198. 


INDEX.  573 

[Baferencea  are  to  Seotiona.] 

TOUTS,  — continued. 

death  by  wrongful  act,  199-202. 

conditions  of  action  for,  determined  by  lex  delicti,  202. 

damages,  limit  of,  202. 

injury  in  one  State,  death  in  another,  195. 

luuitations,  period  of,  202,  210. 

proper  plaintiff,  108,  201. 
fellow-servants,  197. 
lex  loci  delicti  controls,  195-197. 

exceptions  to  operation  of  lex  delicti,  194. 
liability  of  carriers,  195,  199-202. 

of  carrier  of  passengers  for  malicious  act  of  servant,  107. 
negligence, 

comparative,  197. 

contributory,  197. 

in  one  State,  injury  in  another,  19& 

presumed,  when,  197. 
presumptions  as  to  lex  delicti,  198. 
risk,  assumption  of,  197. 
situs  of,  195. 

by  agents,  195. 

by  animals,  195. 

committed  on  high  seas,  195. 

to  personalty,  195. 

to  real  property,  195. 
TRADE,  contracts  in  restraint  of,  175. 
TRANSFERS   OF  PROPERTY.    (5ec  Assignments.) 
TRESPASS.     {See  Tokts.) 
TRUSTEE,     (^ee  Fidociaries.) 

capacity  of  married  woman  to  be  a,  71. 
in  bankruptcy,  138-139. 
in  deeds  of  assignment,  133-135. 
TRUSTS, 

by  implication,  80. 
charitable,  70,  144. 
in  wills,  70,  144,  146. 
precatory,  146. 

u. 

USURY,  effect  of,  upon  contracts,  179. 


V. 

VALIDITY, 

of  assignments  of  property,  11-12,  122,  127-188.     (See  Assignments.) 
of  contracts  executory,  72,  77,  168-179.     (See  Contracts.) 
of  foreign  divorce,  87-94     (See  Divorce.) 


574  INDEX. 

[References  are  to  Sections.] 

VALIDITY,  —  continued. 

of  foreign  judgments  and  decrees,  85-86,  95-96.    (See  Judgments.) 

of  marriage,  73-78.     {See  Marriage.) 

of  nuptial  agreements,  80-82. 

of  wills,  12,  142-160.     {See  Wills.) 
VENDOR, 

lien  of,  upon  sale  of  chattels,  128. 

reservation  of  title  in,  130. 

warranty  of  title  by,  181. 
VESSEL.     {See  Ship.) 
VIS  MAJOR,  contract  discharged  by,  181. 
VOLUNTARY  ASSIGNMENTS,  and  transfers  of  property,  12,  120-136 

{See  Assignment.) 
VOTE, 

right  to,  as  eyidence  of  domicil,  64. 

student's  right  to,  20. 


w. 

WAGERING  CONTRACTS,  validity  of,  161,  176,  178. 
WAGES,  EXEMPTION  OF,  upon  garnishment,  126,  209. 
WARD.     {See  Guardian.) 
WARRANTY, 

covenants  of,  in  conveyances  of  land,  186. 
implied,  in  sale  of  chattels,  181. 
WIDOW, 

distributive  share  of,  in  personalty  of  husband,  81. 
domicil  of,  52. 
dower  of,  12,  80. 

jointure,  as  a  bar  to  dower  of,  147. 
WIFE.     (See  Married  Woman.) 
WILLS, 

of  land,  12,  145,  150. 

capacity  to  make,  12. 
capacity  to  take  under,  12. 
interpretation  of,  12,  145,  150. 
trusts  in,  12.     {See  Trusts.) 
validity  of,  12. 
of  land  and  personalty,  142. 
of  personalty,  70,  142-150. 
accumulations,  70,  144. 
capacity  of  legatee,  70,  144. 
capacity  to  make,  70,  144. 
formal  validity  of,  148. 
interest  on  legacies,  118. 


INDEX.  576 

[References  are  to  Sectiona.] 

WILLS,  —  continued. 
of  personalty, 

interpretation  of,  145-148,  150,  186. 

domicil  of  testator  changed  after  execution  of,  148, 186. 
election,  146,  147. 
hotchpot,  146. 

jointure,  as  a  bar  to  dower,  147. 
lapse,  147. 
perpetuities,  70,  144. 
revocation  of,  149. 

birth  of  pretermitted  child,  149. 

burning,  tearing,  etc.,  149. 

subsequent  marriage,  149. 

subsequent  removal  to  a  State  whose  law  invalidates,  70,  143- 

144. 
subsequent  will,  149. 
statutes  of  mortmain,  70,  144. 
substantial  validity  of,  70,  144. 
under  powers  of  appointment,  150. 
capacity  to  make,  150. 
formal  validity  of,  150. 
interpretation  of,  150. 
substantial  validity  of,  150. 
WITNESSES, 

competency  of,  determined  by  lex  fori,  208. 
convicted  of  offense  abroad,  competency  of,  10. 
WRITING,  contracts  required  to  be  in,  173-174,  210. 


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